Summary
In Benitez, there was no proof whatsoever as to the manner in which plaintiff's 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.
Summary of this case from Mason v. U.E.S.S. Leasing Corp.Opinion
January 18, 1996
Appeal from the Supreme Court, Bronx County (Luis Gonzalez, J.).
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 A.D.2d 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 A.D.2d 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.