Benitez v. Paxton Realty Corp.

223 A.D.2d 431, 637 N.Y.S.2d 11, 1996 N.Y. App. Div. LEXIS 333

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1996
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered August 31, 1994, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly granted on the ground that plaintiff, a guest of a tenant in a building owned by defendant, failed to come forward with any competent evidence raising a genuine issue of fact as to whether his assailants gained access to the building as a result of defendant’s negligence. Without any proof whatsoever as to the manner in which his assailant gained access to the building, plaintiff cannot prove that defendant’s negligence, if any, was the proximate cause of his injuries (Kistoo v City of New York, 195 AD2d 403, 404). Moreover, plaintiff’s act of opening the locked apartment door, without first checking who was at the door, after dark, despite the fact that he had a peephole, was an intervening cause of the assailants’ attack, severing any liability of defendant for failure to provide adequate security (Elie v Kraus, 218 AD2d 629, 630-631). Further, there was no showing of any history of criminal conduct on the premises. Concur—Rosenberger, J. P., Wallach, Rubin, Nardelli and Mazzarelli, JJ.