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Bornstein v. 255 West 84tm Owners Corp.

Supreme Court, New York County

July 8, 2013

HILDA BORNSTEIN, Plaintiff,
v.
255 WEST 84™ OWNERS CORP. and MIDBORO MANAGEMENT, INC., Defendants. Index No.116516/10

Unpublished Opinion

PAUL WOOTEN Justice

The following papers, numbered 1 to 4, were read on this motion by defendants for summary judgment dismissing the complaint.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits .....1, 2

Answering Affidavits — Exhibits (Memo) ........3

Replying Affidavits (Reply Memo)...................4

Cross-Motion:  Yes  No

Hilda Bornstein (plaintiff), [1] commenced the herein action against 255 West 84th Street Owners Corp. (Owners), a residential cooperative that owns, operates and manages the building located at 255 West 84th Street, New York, NY 10024 (the building), and Midboro Management, Inc. (Midboro) (collectively, defendants), the managing agent of the building, to recover damages for the theft of multiple pieces of jewelry from her apartment. The theft was committed by William Vasquez (Vasquez), an employee of the building, who pleaded guilty to burglary in the second degree and is currently serving an eight-year prison term. Now before the Court is a motion by the defendants for summary judgment dismissing the complaint, pursuant to CPLR 3212. Plaintiff is in opposition to the motion. Discovery in this matter is complete and the Note of Issue has been filed.

BACKGROUND

This case arises from an incident that occurred in plaintiffs apartment, 11D, at the building in May or June of 2008 (see Defendants' Affirmation (Aff.) in Support at 15; Complaint at 17). Plaintiff has lived in the building for approximately 40 years (see Defendants' Aff. in Support, Examination Before Trial (EBT) of Hilda Bornstein (Bornstein EBT), exhibit B, p 6; Bill of Particulars (BP) ¶ 3). Plaintiff is a rent-controlled tenant of the building who pays her rent to Midboro (see Bornstein EBT, p 34). Midboro has managed the building since 2002 (Aff. of Michael Wolfe (Wolfe Aff.) at 2).

In or about May or/through June of 2008, plaintiff was vacationing in France, and upon her return on June 8, 2008, she alleges that she discovered jewelry was missing from her apartment (see Complaint ¶¶15-16). Plaintiff testified that she filed a report with the police and informed the superintendent of the building, "Jimmy, " as well as the property manager, of the missing jewelry (see Bornstein EBT, p. 13-16). Plaintiff testified that a detective assigned to her case interviewed Jimmy and the entire crew of the building regarding the incident, yet all men denied knowledge and culpability (see Bornstein EBT, p. 22).

Vasquez worked at the building since 2002 (see EBT of Ellen Marrone (Marrone EBT), exhibit C, p. 27), he was hired as a porter and/or doorman[2] and was an employee of Owners (Wolfe Aff. at 4). In June of 2009, a year after the subject burglary, Vasquez was arrested in connection with this incident and other burglaries in the building (Aff. of Earl Kirn (Kirn Aff.) at 4). Vasquez confessed to the robbery of plaintiff's jewelry (BP ¶ 18-20) and was subsequently fired from his position at the building (Wolfe Aff. at 3).

In this action, plaintiff seeks damages against Owners and Midboro for the negligent hiring, retention, and supervision of Vasquez. Plaintiff alleges she suffered damages in an amount no less than five hundred thousand dollars, including extreme mental anguish, outrage, anxiety concerning her security, disruption of her personal life, and loss ...


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