Opinion
2012-04-26
Lamont BANNER, etc., et al., Plaintiffs–Respondents, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
Cullen and Dykman LLP, Brooklyn (Joseph Miller of counsel), for appellant. Raskin & Kremins, L.L.P., New York (Andrew Metzar of counsel), for respondents.
Cullen and Dykman LLP, Brooklyn (Joseph Miller of counsel), for appellant. Raskin & Kremins, L.L.P., New York (Andrew Metzar of counsel), for respondents.
MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 26, 2011, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
The infant plaintiff was injured when, while sitting on his bicycle in the courtyard at the rear of a building owned by defendant, he was hit in the eye by a bottle that was allegedly thrown from the roof of the building. Plaintiffs allege in their notice of claim and bill of particulars that NYCHA was negligent in failing to secure the roof and in allowing persons to use it in a dangerous and defective manner.
A landlord is not an insurer of tenant safety ( Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606, 407 N.E.2d 451 [1980]; Raghu v. 24 Realty Co., 7 A.D.3d 455, 777 N.Y.S.2d 487 [2004] ). However, “a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances” ( see Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636, 781 N.Y.S.2d 249, 814 N.E.2d 419 [2004]; Kush v. City of Buffalo, 59 N.Y.2d 26, 29–30, 462 N.Y.S.2d 831, 449 N.E.2d 725 [1983] ). This duty includes an obligation “to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” ( Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 878, 730 N.Y.S.2d 770, 756 N.E.2d 58 [2001]; Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293–294, 598 N.Y.S.2d 160, 614 N.E.2d 723 [1993] ). “However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so” ( Jean v. Wright, 82 A.D.3d 1163, 1164, 919 N.Y.S.2d 377 [2011], lv. denied 17 N.Y.3d 704, 2011 WL 2535046 [2011]; see also D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 [1987] ).
Defendant satisfied its initial burden on its motion for summary judgment. The affidavits from its supervisor of caretakers and a professional engineer established that defendant was required to keep the door to the roof unlocked for fire safety purposes ( see Multiple Dwelling Law 104). The deposition testimony of infant plaintiff established that neither he nor his friends actually saw a person on the roof throw a bottle, and that the alleged perpetrator was unknown, making it possible that the perpetrator was a resident of the building who would have had access to the roof despite any amount of security that the defendant could have provided to keep intruders out ( see Whiteside v. New York City Hous. Auth., 248 A.D.2d 461, 462, 668 N.Y.S.2d 931 [1998], lv. denied 92 N.Y.2d 808, 678 N.Y.S.2d 594, 700 N.E.2d 1230 [1998] ).
In opposition to defendants' prima facie demonstration of entitlement to judgment as a matter of law, plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the conduct at issue through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged ( see Whiteside, 248 A.D.2d at 462, 668 N.Y.S.2d 931; Catlyn v. Hotel & 33 Co., 230 A.D.2d 655, 646 N.Y.S.2d 513 [1996] ).
Accordingly, defendant is entitled to summary judgment dismissing the complaint.