NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
October 6, 2009
JOSE ORTIZ, PLAINTIFF-RESPONDENT,
WIIS REALTY CORP., DEFENDANT-APPELLANT.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 14, 2008, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Saxe, J. P., Sweeny, Acosta, Richter, JJ.
Defendant met its burden on summary judgment with a prima facie showing establishing as a matter of law that the criminal assault upon plaintiff by an unknown assailant was unforeseeable, i.e., not reasonably predictable (see Maria T. v New York Holding Co. Assoc., 52 AD3d 356, 358 , lv denied 11 NY3d 708 ; Williams v Citibank, 247 AD2d 49, 53 , lv denied 92 NY2d 815 ). Plaintiff failed to come forth with competent evidence of past criminal activity of "the same or similar type" (Novikova v Greenbriar Owners Corp., 258 AD2d 149, 152-153 ) at defendant's building, to raise a triable issue of fact with regard to foreseeability (see Maria T. at 359).
In light of our determination of non-foreseeability, we need not reach the remaining issues raised by the parties.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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