Mason v. U.E.S.S. Leasing Corp. , 712 N.Y.S.2d 465 ( 2000 )

OPINION OF THE COURT

Andrias, J.

Shortly after seven o’clock in the morning of July 11, 1992, plaintiff was awakened by a phone call from her live-in boyfriend, who was in a store across the street and wanted to know if she needed anything from the store. According to plaintiff, he told her he would be upstairs in five minutes. Plaintiff then lay down again to wait for her boyfriend. Shortly thereafter, the doorbell to the apartment rang and, thinking it was her boyfriend, she opened the door without looking through the peephole in the door or asking who it was. At the door was the six-foot, four-inch, 260-pound third-party defendant Lawrence Toole, who .appeared to be “on something” and who grabbed plaintiff by the neck, dragged her into the bedroom and raped and sodomized her.

“In premises security cases * * * the necessary causal link between a landlord’s culpable failure to provide adequate security and a tenant’s injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder.” (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550-551.)

Trial Term, in the order appealed from, granted the motion of defendants and third-party plaintiffs (collectively referred to as landlord) and the cross motion of defendant security service for summary judgment dismissing the complaint. In so ruling, the court found that plaintiffs deposition testimony established that the landlord took minimal security precautions and that there was a failure to show that any claimed negligence was a proximate cause of plaintiffs injuries. We disagree.

Despite the fact that the landlord had a security guard stationed in the common lobby and that the buildings in the Leffak City complex had a working intercom system and locked inner and outer doors, a question of fact is presented as to whether or not defendants negligently permitted plaintiffs attacker into her building, 97-30 57th Avenue, where, according to plaintiff, the attacker, a nonresident who had grown up in Lefrak City, was widely known as a troublemaker to both security personnel and the complex’s residents, including plaintiff. It is of no moment to the attacker’s status as an intruder that his mother may have lived in a related but separate and distinct building, 97-22 57th Avenue. Furthermore, according to defendant security service, his photograph was also contained in its “photo book,” containing pictures of persons arrested in the premises.

This case is distinguishable on its facts from two other peephole cases discussed by the motion court, Elie v Kraus (218 AD2d 629, lv denied 88 NY2d 842) and Benitez v Paxton Realty Corp. (223 AD2d 431), both of which predate the Court of Appeals decision in Burgos and have previously been distinguished by this Court (see, Carmen P. v PS&S Realty Corp., 259 AD2d 386, 389). In Elie, plaintiff lived in a garden apartment complex laid out in a series of two-story buildings with access provided through a ground-level door which led to two units. The previous locks on the buildings’ outer doors had been removed in favor of new inner apartment doors with an extra deadbolt and a peephole. Thus, the individual tenant’s own apartment doors were the main line of defense against intruders (see, Carmen P. v PS&S Realty Corp., supra) and buzzing open his door without first checking who was at the door, after dark, despite the fact that he had a peephole in his front door, was found by this Court to be an intervening cause of the attack, thus severing the landlord of liability.

In Benitez, there was no proof whatsoever as to the manner in which plaintiffs assailant gained access to the building and this Court, applying the pre-Burgos standard, held that plaintiff could not prove that defendant’s negligence, if any, was the proximate cause of his injuries. Continuing, in what was essentially dicta, the Court, relying upon Elie, stated that “plaintiffs act of opening the locked apartment door, without checking who was at the door, after dark, despite the fact that [there was] a peephole, was an intervening cause of the assailants’ attack, severing any liability of [the landlord] for failure to provide adequate security” (223 AD2d, supra, at 432).

As noted, both Elie and Benitez predated the Court of Appeals decision in Burgos and, to the extent that they decided, as a matter of law, the issue of whether an intervening act severed the causal relationship between a landlord’s alleged negligence in providing security against intruders and the ability of the intruder who attacked plaintiff to gain access to his or her apartment, that issue is better left to a jury given the facts alleged in this case (see, Allen v New York City Hous. Auth., 194 AD2d 427).

“Depending upon the nature of the case, a variety of factors may be relevant in assessing legal cause. * * * Where the acts of a third person intervene between the defendant’s conduct and the plaintiffs injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence * * *. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus * * *. Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve [,although] [t]here are certain instances, to be sure, where only one conclusion may be drawn from the established facts and where the question of legal cause may be decided as a matter of law. Those cases generally involve independent intervening acts which operate upon but do not flow from the original negligence” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315 [citations omitted]).

Given the circumstances of this case, it cannot be said, as a matter of law, that plaintiffs opening of her apartment door, without looking through the peephole or inquiring who was at the door, was an independent intervening act which did not flow from defendants’ alleged negligence in permitting a known troublemaker to enter the premises and gain access to plaintiff’s apartment, thus relieving defendants of any liability.

Indeed, in Burgos (supra), although there was no mention of a peephole, the plaintiff opened her apartment door and entered the hallway one spring afternoon, when two men pushed her back into her apartment, where they beat and robbed her. In the instant case, plaintiff, without any phone call from her boyfriend, could just as likely have opened her apartment door without looking through the peephole if she were on her way to work or even if she were taking out the garbage. The circumstances and the effect of her opening the door on the issue of an independent intervening act or, for that matter, proximate cause or comparative negligence are best left to a jury to decide.

Accordingly, the order of the Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about February 9, 1999, which granted plaintiffs motion for renewal and, upon renewal and consideration of plaintiffs opposing papers, granted the motion of defendants U.E.S.S. Léasing Corporation and Builders and Realtors Corporation and the cross motion of defendant Mid-City Security Service, Inc. for summary judgment dismissing the complaint, should be reversed, to the extent appealed from as limited by the briefs, on the law, without costs, defendants’ motion and cross motion should be denied, the complaint reinstated and the matter remanded for further proceedings.