Reinert v 291 Pleasant Ave., L.L.C.
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on September 14, 2011
PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
Plaintiff appeals, as limited by her briefs, from (1) so much of an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), dated October 29, 2009, as granted defendants-respondents' motion for summary judgment dismissing the complaint as against them, and denied plaintiff's cross motion for leave to amend her complaint, and (2) an order (same court and Judge), entered August 13, 2010, which, upon reargument, adhered to the aforesaid order.
Order (Arthur F. Engoron, J.), entered August 13, 2010, reversed, with $10 costs, defendants' motion denied, complaint reinstated, plaintiff's cross motion granted and the amended complaint in the form submitted on the cross motion deemed served and filed. Appeal from order (Arthur F. Engoron, J.), dated October 29, 2009, dismissed, without costs, as superseded by the appeal from the August 13, 2010 order.
Plaintiff, a residential tenant in building premises owned and managed by defendants-respondents, commenced this action seeking to recover damages for personal injuries allegedly sustained during an assault by another tenant in a common hallway of the building. Defendants moved for summary judgment dismissing the complaint, and plaintiff cross-moved to amend the complaint to add a cause of action for violation of Real Property Law § 231(2). Upon reargument, Civil Court granted defendants' motion on the ground that they had no duty to protect plaintiff from the aggression of another tenant and her injury was not foreseeable. We reverse.
"Where the basis of liability in a case such as this is a claim that the landlord failed to protect one tenant from the aggression of another tenant, it must first be established that the landlord had the ability and a reasonable opportunity to control the aggressor" and that "the harm complained of was foreseeable" (Hughes v City of New York, 238 AD2d 477 ; see Simms v St. Nicholas Ave. Hotel Co., 187 AD2d 373 , lv denied 81 NY2d 714 ; Firpi v New York City Hous. Auth., 175 AD2d 858, 859 , lv denied 78 NY2d 864 ). Here, the record tends to establish that plaintiff repeatedly notified defendants in writing of the neighboring tenant's prior incidents of offending conduct, including verbal insults, threats of harm and acts of vandalism against plaintiff, a prior assault upon her, and his drug-related activity in the common areas of the building. This evidence was sufficient to raise triable issues as to defendants' ability and opportunity to control the offending tenant, and the foreseability of the complained of harm (see Luisa R. v City of New York, 253 AD2d 196, 201 ; Simmons v City of New York, 168 AD2d 230 ). Accordingly, defendants' motion for summary judgment dismissing the complaint should have been denied.
Since leave to amend pleadings "shall be freely given" (CPLR 3025[b]), and plaintiff raised a colorable claim based upon defendants' alleged violation of Real Property Law § 231(2) (see Luisa R. v City of New York, 253 AD2d at 202), leave to amend the complaint to add that claim should have been granted (see McCaskey, Davies & Assoc. v New York City Health & Hosp. Corp., 59 NY2d 755, 757 ). Defendants' conclusory assertions failed to show any surprise or prejudice (see Lanpont v Savvas Cab Corp., 244 AD2d 208, 210 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur
Decision Date: September ...