Opinion
April 22, 1999
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
Defendants' motion for summary judgment was based on plaintiffs failure to make a prima facie showing of defendants' proximate liability for the June 1984 attack on plaintiffs decedent by unidentified assailants. In support of the motion, defendants argued that even assuming an assault had actually occurred, plaintiff failed to show that it took place in a location where they owed any duty, or was perpetrated on defendants' property by intruders. Plaintiff argued that the location of the assault had indeed been fixed on property controlled by defendants, her decedent having testified that he was beaten in the parking lot' by strangers who had followed him home from the train station. At least on these points, there appear to be triable issues of fact.
The motion was decided, however, on an entirely different ground. Plaintiffs assertion of "frequent complain[ts] about the lack of security and criminal activity in the area" was found to be "conclusory", with "no specific evidence about prior crimes" or any "mention of criminal conduct on the premises." The IAS Court's sua sponte determination of the summary judgment motion on this new issue (i.e., lack of notice of prior criminal activity) substantially prejudiced plaintiff, who had no opportunity to respond ( Huggins v. Whitney, 239 A.D.2d 174). Had she been given notice of the issue, there was pertinent evidence at hand that she could have submitted.
The security reports offered in plaintiffs motion before this Court refer to 59 separate incidents of criminal activity in and around the premises during the period June 1982 through December 1983. These reports initially came to light in 1990 as a result of plaintiffs discovery, after another Judge in this case had denied defendants a protective order. The IAS Court's analysis of these documents might give rise to a triable issue as to the foreseeability of criminal activity in the area ( Jacqueline S. v. City of New York, 81 N.Y.2d 288). If so, defendants' alleged negligence in failing to provide adequate security, if proven, might further establish proximate cause for liability ( see, Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544).
Concur — Nardelli, J. P., Wallach, Lerner and Andrias, JJ.