Order, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered August 19, 2009, which, in an action for personal injuries sustained in a crime allegedly caused by inadequate building security, granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.
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.
Gonzalez, P.J., Saxe, Nardelli, McGuire, Moskowitz, JJ.
The motion court found that defendants were entitled to summary judgment because, as the infant plaintiff testified, the doors to the building were propped open when she arrived at the building. The court concluded that since plaintiffs could not produce any evidence as to when the doors had been propped open, or when the assailant entered the building, it was just as likely that the assailant entered the building through the open doors as it was that he gained entrance because the locks were broken, and, thus, plaintiffs could not establish a causal connection between the broken locks and the attack. The argument on which the court relied, however, was raised for the first time in defendants' reply papers, and should not have been considered by the court in formulating its decision (see Serradilla v Lords Corp., 50 AD3d 345, 346 ).
Thus, summary judgment was improperly granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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