For plaintiff: For River Place defendants:
Kevin J. Murtagh O'Connor, O'Connor, et al.
For River Place Defendants
Thomas F. Maher Krai, Clerkin, Redmond, et al.
DECISION AND ORDER
Barbara Jaffe, JSC
By notice of motion dated January 25, 2012, defendants River Place I LLC (River Place) and Silverstein Properties, Inc. (Silverstein) move pursuant to CPLR 3212 for an order summarily dismissing this action against them. Plaintiff opposes.
In 2003, plaintiff lived in River Place, a large apartment building owned by Silverstein. (Affirmation of Thomas F. Maher, Esq., dated Jan. 25, 2012 [Maher Aff], at ¶15; Affirmation of Kevin J. Murtagh, Esq., dated March 8, 2012 [Murtagh Aff.], at ¶¶ 11, 32). At that time, there were security guards, a 24-hour doorman, and security cameras. (Maher Aff. at ¶¶ 17, 43; Murtagh Aff. at ¶ 11). Special "Intellekeys" secured the elevators and individual apartments. (Maher Aff. at ¶ 16, 33, 37; Murtagh Aff. at ¶ 11). Intellekeys can be electronically disabled by building security. (Maher Aff. at ¶ 16, 33, 37; Murtagh Aff. at ¶11). Building protocol permitted anyone with an Intellekey into the building. (Maher Aff. at ¶¶28-31; Murtagh Aff. at ¶¶16, 31).
On or about April 24, 2003, Lance Stubbs, then using the alias of NFL player Darian Tate, stole plaintiffs Intellekey while visiting her apartment. (Maher Aff. at ¶13; Murtagh Aff. at ¶¶14, 16). On April 31, 2003, plaintiff met Stubbs for drinks at a hotel. (Maher Aff. at ¶¶23-25; Murtagh Aff. at ¶ 15). She argued with him ¶¶ 25, 28; Murtagh Aff. at ¶¶| 14, 15). At approximately 8 pm, she arrived at her building and told building staff that she "needed help getting into [her] apartment." (Id.). A building employee escorted plaintiff to her apartment and opened her door with a master Intellekey. (Id.).
Later that night, at approximately 4 a.m.5 using the stolen key, Stubbs entered the building without being stopped, accessed the elevators, opened plaintiffs door, and raped her in her bedroom. (Maher Aff. at ¶ 28-31; Murtagh Aff. ¶¶16, 31). Stubbs was subsequently arrested and convicted of rape in the first degree, and was sentenced to a 10-year prison term. (Murtagh Aff. at ¶¶16, 17, Exh. C).
II. PROCEDURAL BACKGROUND
On or about January 18, 2006, plaintiff commenced this action against River Place and Silverstein. (Mayer Aff. at ¶¶ 3, 4). River Place and Silverstein commenced a third party action against Advantage Security, Inc. and American Building Maintenance Company who obtained a summary dismissal of the case against them on March 7, 2012. (Id. at ¶ 5; Murtagh Aff, Exh. A).
At a deposition held on February 24, 2010, plaintiff testified that when she asked to be let into her apartment by building staff, she believed that she had misplaced the key in her room and that it would turn up eventually. (Maher Aff, Exh. Hat 273:7-12). She did not recall telling anyone at River Place that her key was lost at any time before the assault. (Id., Exh. H at 203:24-205:16; 257:10-258:2; 261:2-11). At depositions held on January 20, 2011 and February 15, 2011, Kevin Bagby and Jeffrey Goldberg, respectively, testified that anyone with an Intellikey would be let into the building without being stopped and that a key would only be replaced if the tenant told the building it was "lost." (Id, Exh. L at 47:11-48:9, 52:22-53:15, Exh. M.. at 34:23-35:5, 37:13-38:17). At a deposition held on November 12, 2010, Edward Ferrer ...