Patel v. 25 Gunhill Associates

Appellate Division of the Supreme Court of New York

Patel v. 25 Gunhill Associates

277 A.D.2d 84, 717 N.Y.S.2d 28, 2000 N.Y. App. Div. LEXIS 12013

Appellate Division of the Supreme Court of the State of New York·Decided November 16, 2000·Published·Cited by 1 cases

Opinion

—Order, Supreme Court, Bronx County (Janice Bowman, J.), entered August 13, 1999, which, in an action to recover for personal injuries sustained by plaintiff building resident allegedly as a result of inadequate building security, granted motions by defendant building owner and third-party defendant elevator maintenance company to dismiss the complaint and third-party complaint, respectively, and denied plaintiff’s cross motion for summary judgment on the issue of defendant’s liability, unanimously modified, on the law, to deny defendant’s and third-party defendant’s motions, and otherwise affirmed, without costs.

Plaintiff asserts that he was grabbed by an unidentified person in the lobby of the building, but managed to break free and run into the elevator. However, he was pursued by the assailant, who, due to a malfunctioning elevator door, was able to get into the car, where plaintiff was beaten and robbed. Plaintiff also adduces evidence that the problem with the elevator was a recurring one of which defendant had notice; that an ' entrance door lock had been broken for about a month before the incident, permitting unfettered access to the building’s lobby, about which defendant had received numerous complaints from tenants; and of a history of violent crime in the immediate neighborhood. Such evidence, absent countervailing evidence from defendant, suffices to raise an issue of fact as to the intruder status of the assailant (see, Burgos v Aqueduct Realty Corp., 92 NY2d 544, 551; Brewster v Prince Apts., 264 AD2d 611, 613-614, lv dismissed 94 NY2d 875, lv denied 94 NY2d 762). Accordingly, we modify to reinstate the complaint. The third-party complaint should also be reinstated as it appears to have been dismissed merely because the complaint was dismissed. We have considered and rejected plaintiff’s argument that he is entitled to summary judgment on the is[85] sue of defendant’s liability. Concur — Sullivan, P. J., Rosenberger, Tom, Wallach and Andrias, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, Bronx County (Janice Bowman, J.), entered August 13, 1999, which, in an action to recover for personal injuries sustained by plaintiff building resident allegedly as a result of inadequate building security, granted motions by defendant building owner and third-party defendant elevator maintenance company to dismiss the complaint and third-party complaint, respectively, and denied plaintiff’s cross motion for summary judgment on the issue of defendant’s liability, unanimously modified, on the law, to deny defendant’s and third-party defendant’s motions, and otherwise affirmed, without costs.

Plaintiff asserts that he was grabbed by an unidentified person in the lobby of the building, but managed to break free and run into the elevator. However, he was pursued by the assailant, who, due to a malfunctioning elevator door, was able to get into the car, where plaintiff was beaten and robbed. Plaintiff also adduces evidence that the problem with the elevator was a recurring one of which defendant had notice; that an ' entrance door lock had been broken for about a month before the incident, permitting unfettered access to the building’s lobby, about which defendant had received numerous complaints from tenants; and of a history of violent crime in the immediate neighborhood. Such evidence, absent countervailing evidence from defendant, suffices to raise an issue of fact as to the intruder status of the assailant (see, Burgos v Aqueduct Realty Corp., 92 NY2d 544, 551; Brewster v Prince Apts., 264 AD2d 611, 613-614, lv dismissed 94 NY2d 875, lv denied 94 NY2d 762). Accordingly, we modify to reinstate the complaint. The third-party complaint should also be reinstated as it appears to have been dismissed merely because the complaint was dismissed. We have considered and rejected plaintiff’s argument that he is entitled to summary judgment on the is[85] sue of defendant’s liability. Concur — Sullivan, P. J., Rosenberger, Tom, Wallach and Andrias, JJ.

Patel v. 25 Gunhill Associates, 277 A.D.2d 84, 717 N.Y.S.2d 28, 2000 N.Y. App. Div. LEXIS 12013 (N.Y. Ct. App. 2000).

Pincite

277 A.D.2d 84 (Patel v. 25 Gunhill Associates) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related