April 16, 2013
AMY FISCHER, Plaintiff,
RIVER PLACE I LLC, SILVERSTEIN PROPERTIES, INC., ADVANTAGE SECURITY INC. and AMERICAN BUILDING MAINTENANCE COMPANY, Defendants. RIVER PLACE I LLC and SILVERSTEIN PROPERTIES, INC., Third-Party Plaintiffs,
AMERICAN BUILDING MAINTENANCE COMPANY, Third-Party Defendant. Index No. 100990/2006
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 testified that the current policy at River Place is to deactivate a key whenever management "becomes aware of the fact that a tenant has misplaced the key." (Id, Exh. K at 11:11-17, 50:4-8, 80:17-81:13).
Defendants contend that the undisputed facts show that they satisfied their duty to secure River Place, and are thus entitled to summary judgment in their favor. Specifically, they argue that because the assault was not foreseeable, they cannot be held liable for the assault even if they failed to secure the premises. (Murtagh Aff.).
Plaintiff maintains that because defendants failed to follow their own security protocols, there exists a triable issue as to both whether the assault was foreseeable and whether defendants breached their duty to secure the premises. (Murtagh Aff). It rests its claim that the assault was foreseeable on general crime conditions in New York City. (Id).
A party seeking summary judgment must demonstrate, prima facie, entitlement to judgment as a matter of law by presenting evidence sufficient to negate any material issues of fact. (Forest v Jewish Guild for the Blind, 3 N.Y.3d 295, 314 ; Zuckerman v City of New York, 49 N.Y.2d 557, 562 ). If the movant meets this burden, the opponent must rebut the prima facie showing by submitting admissible evidence demonstrating that factual issues exist warranting a trial. (Zuckerman, 49 N.Y.2d 562; Bethlehem Steel Corp. v Solow, 51 N.Y.2d 870, 872 ). Courts may not assess credibility on a motion for summary judgment, and the facts must be viewed in the light most favorable to the nonmoving party. (Forest, 3 N.Y.3d 314; Ferrante v American Lung Assn., 90 N.Y.2d 623, 631 ). Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable. (Forest, 3 N.Y.3d 314).
An apartment building owner has a common-law duty to take minimal security precautions to protect tenants against foreseeable criminal acts by third parties. (Mason v UESS Leasing Corp., 96 N.Y.2d 875, 878 ; Banna v NYCHA, 94 A.D.3d 666, 667 [1st Dept 2012]). Liability arises only if the owner knew or should have known that a criminal was likely to endanger one of the tenants, even if the building was minimally secured. (See Jacqueline S. v City of New York, 81 N.Y.2d 288 ; Maria T. v NY Holding Co. Assoc, 52 A.D.3d 356 [1st Dept 2008]; Buckeridge v Broadie, 5 A.D.3d 298 [1st Dept 2004]). Typically, foreseeability is established by proof of prior, similar criminal behavior in the area; general evidence of ambient neighborhood crime is insufficient. (Id.).
Here, Stubbs stole plaintiffs key, waited approximately one week, and then used the key to enter plaintiffs apartment and attack her. Absent other evidence, there is no reason why River Place would have foreseen the assault even if the building had been minimally secured. (Flynn v Esplanade Gardens, Inc., 76 A.D.3d 490, 492 [1st Dept 2010] ["[b]ecause the specifically targeted attack on plaintiff was in no way a predictable result of allowing [the assailant] into the building, the harm to plaintiff was not proximately caused by [defendant's] negligence, if any."]). Rather, the assault on plaintiff "constituted an unforeseeable, intervening force that severed any causal nexus between [River Place's] alleged negligence and plaintiffs injuries, since it is most unlikely that reasonable security measures would have prevented an attack of this kind." (Id). Moreover, plaintiff offers no evidence of any prior criminal activity in the area. (See Maria T., 52 A.D.3d 356 [dismissing case absent evidence of similar prior assaults in area]; Buckeridge, 5 A.D.3d 298 [same]).
In Tamimu v River Park Assoc, an attack was held foreseeable because building security failed to follow its own policies. (8 A.D.3d 93 [1st Dept 2004]). Here, by contrast, there is no evidence that River Place failed to follow its own policies. Rather, as plaintiff failed to tell anyone at River Place that her key was lost or even misplaced, River Place had no obligation to disable her Intellekey. That River Place now deactivates a key whenever management becomes aware that a key is misplaced is immaterial. Consequently, plaintiff has failed to raise an issue of fact as to whether the assault was foreseeable.
Accordingly, it is hereby
ORDERED, that the complaint is thus dismissed in its entirety with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs, and the Clerk is directed to enter judgment accordingly.