Opinion
Index Number: 106964/10
07-23-2013
BARBARA TERRERO as legal guardian of BRAULIA ALVAREZ, Plaintiffs, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
For Plaintiffs: Herzfeld & Rubin, P.C. For Defendant: Zaremba Brownell & Brown PLLC
DECISION and ORDER
For Plaintiffs:
Herzfeld & Rubin, P.C.
For Defendant:
Zaremba Brownell & Brown PLLC
Papers considered in review of defendant New York City Housing Authority's motion for summary judgment (motion seq. no. 006):
Notice of Motion/Affirm, of Counsel/Memo of Law/Exhibits...................1HON SALIANN SCARPULLA , J.:
Affirm, of Counsel in Opp. to Motion/Exhibits.........................................2
Reply Affirm, in Supp..............................................................................3
In this negligence action, defendant New York City Housing Authority ("NYCHA") moves for summary judgment dismissing the complaint pursuant to CPLR § 3212.
Plaintiffs Barbara Terrero and her grandaughter Braulia Alvarez ("Alvarez") (collectively, "Plaintiffs") reside in an apartment building owned and managed by NYCHA, located at 2949 8th Avenue, New York, NY. The complaint alleges that, on November 24, 2009, Alvarez was sexually assaulted by Ronald Polanco ("Polanco") on the roof of the apartment building. Plaintiffs allege that the sexual assault was proximately caused by NYCHA's negligence in failing to provide adequate security at the building. Specifically, Plaintiffs claim that NYCHA failed to provide a functioning front door lock or minimal security precautions such as an alarm on the roof or security surveillance cameras.
At her deposition, Alvarez testified that on November 24, 2009, she attended an after school party for her eighth grade class and left school to go home at approximately 6:30pm. Alvarez testified that Polanco, an ex-boyfriend, was "standing in front of the school" waiting for her.
Alvarez boarded the bus to ride home. Polanco followed her onto the bus and then exited the bus to follow Alvarez to her apartment. Alvarez testified that she walked ten blocks to her apartment, with Polanco following one block behind her.
When Alvarez reached the parking lot of her apartment building, Polanco stopped her and asked her why she stayed for after school activities. Alvarez testified that Polanco then "took my sweater and my book bag, and he said, you're not going anywhere without your book bag. I don't think you're going home." Alvarez asked Polanco to give her sweater and book bag back, and then continued walking to her apartment building.
When Alvarez reached the entrance of the building, she pulled the front door open. Alvarez testified that she did not need a key because the front door lock was broken. Alvarez testified that after she entered the building, Polanco was following "two or three minutes behind me."
At Alvarez's deposition, NYCHA's counsel asked her to estimate the distance between herself and Polanco when she entered the building. Alvarez testified that Polanco was "two feet behind me" and then estimated that he was approximately four feet behind her. Alvarez later testified that she did not know when Polanco came through the door. In her testimony, Alvarez stated "I really don't know because I was going headed to the elevator. I was not worried he was coming behind me or I was worried about the elevator getting upstairs and I was not paying attention."
Alvarez submitted an errata sheet to correct her deposition testimony as follows: (a) from "two feet" to "two minutes" (Depo Tr. 29, lines 17-18) and (b) from an estimate of two or four feet to "I don't know" (Depo Tr. 30, lines 6-8, 11). NYCHA argues that Alvarez's corrections should be disregarded because even though she submitted her errata sheet in a timely manner, she did not submit a signed deposition transcript within sixty days as required by CPLR § 3116(a).
After Alvarez entered the lobby, she waited for the elevator. Polanco was standing one foot away from her. Alvarez testified that Polanco then grabbed her right arm and pulled her into the elevator. Alvarez and Polanco then rode the elevator to the sixth floor where Alvarez's apartment was located. Alvarez testified that she stopped on the sixth floor, then "I walked to where I was walking. He let go of my hand. I walked to my apartment and I was getting to ready to knock on the door he said go ahead and knock; do you want to get in trouble."
This specific testimony was provided by Alvarez at her § 50-h hearing.
Alvarez then testified that she did not knock on the door of her apartment and that she walked away towards the elevator. She testified that she did not knock on the door because "I was afraid that I was going to get in trouble" and "I was just so scared that he [Polanco] was going to do something if I was going to go in the house and do something to my grandmother."
Polanco then asked Alvarez why she stayed after school and never talked to him. Alvarez cried and she testified that Polanco "grabbed my arm and he said come in the elevator." Polanco and Alvarez then rode the elevator up to the 17th floor, and then entered a second elevator to go up to the 30th floor. Alvarez testified that she was on the 30th floor with Polanco for about twenty or thirty minutes, and he then pulled her up the stairs to the roof. Polanco pushed the door open to the roof. Alvarez testified that she was crying and that Polanco then sexually assaulted her on the roof of the building.
Id.
NYCHA now moves for summary judgment dismissing the complaint on the grounds that it was not the proximate cause of Alvarez's injuries. NYCHA argues that Polanco targeted Alvarez, and that his assault of her was unforeseeable which severed any causal connection between NYCHA's alleged negligence and Alvarez's injuries. NYCHA also argues that the condition of the front door lock is irrelevant because Polanco entered directly behind Alvarez and that she permitted him to enter the building.
NYCHA submits an affidavit from violent crime analyst Peter A. Smerick ("Smerick"). In his affidavit, Smerick states it is "my opinion that plaintiff's allegation that the offender in this case was an 'intruder' was not supported by the facts."
NYCHA further argues that it did not act negligently in failing to install or provide a roof alarm, security cameras, or other security measures at the building.
Plaintiffs oppose the motion by arguing that issues of fact exist as to whether NYCHA's negligence proximately caused Alvarez's injuries. Plaintiffs argue that Polanco was an intruder in the building, and that issues of fact exist as to whether the sexual assault was foreseeable given the history of criminal activity on the roof.
Plaintiffs submit the deposition testimony of Anthony Dingle ("Dingle"), NYCHA's superintendent for the building. Dingle testified that the front door of the building contained an electric magnetic locking system and that it takes "approximately 10 to 12 seconds for that door [the front door] to close completely and re-lock." Dingle testified that his staff conducts daily safety inspections of the front entrance door locks and the roof.
According to Dingle, residents were prohibited from accessing the roof. Dingle testified that he heard "through residents about some criminal activity" on the roof such as "people being up there smoking weed, or one of my employees might say that there was like condoms up there." Dingle further testified that his staff notified the police about these activities so that the police could perform vertical checks of the building.
Plaintiffs also submit an inspection report for the apartment building dated September 17, 2009. The inspection report lists an unsatisfactory rating for the lobby entrance door and states that the door is "not self-closing."
Plaintiffs further submit an affidavit from security management consultant Leslie Cole ("Cole"). Cole states that "none of the basic security devices were functional" at the building on November 29, 2009, including the front door lock. Cole further states that "[i]t is my professional opinion to a reasonable degree of Security Management certainty, that the actions and inactions of the management and staff of the New York City Housing Authority were the proximate cause of the assault and rape of Braulia Alvarez." Discussion
A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law and offer sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party to demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980).
Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm including a third party's foreseeable criminal conduct. Jacqueline S.v City of New York, 81 N.Y.2d 288, 293-294 (1993). "A tenant may recover damages, however, only on a showing that the landlord's negligent conduct was a proximate cause of the injury." Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 548 (1998).
In premises security cases, the "necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance." Id. at 550.
Based on the documentary evidence and deposition testimony submitted, I deny NYCHA's motion for summary judgment dismissing the complaint. I find here that issues of fact exist as to whether NYCHA proximately caused Alvarez's injuries by failing to provide a functioning front door lock or undertaking other security measures.
Alvarez's testimony raises issues of fact as to whether Polanco was an intruder in the building that gained access through the negligently maintained front door entrance. Alvarez testified that the front door lock was broken on the day of the assault, and that Polanco entered the building behind her. It is unclear from Alvarez's deposition testimony whether Polanco entered directly behind Alvarez before the door had time to close, and whether Alvarez authorized Polanco to come into the building behind her.
Alvarez testified to two versions of the facts: (1) that Polanco entered the building two to three minutes after her which would have given time for the door to close; and (2) that Polanco was two or four feet behind her which may have allowed him to enter the building directly behind Alvarez. The inconsistencies in Alvarez's testimony as to when Polanco entered the building through the front door raise issues of fact to be resolved by the fact finder. Where "a plaintiff has offered two versions of an accident, only one of which would cast the defendant in liability, the inconsistency presents a question for the trier of fact." Silva v. 81st St. &Ave. A Corp., 169 A.D.2d 402, 404 (1st Dep't 1991).
As to Alvarez's errata sheet corrections to her deposition testimony, I exercise my discretion to excuse her delay in submitting a signed deposition transcript. However, I find that the conflict between the original deposition testimony and the errata sheet raises an issue of credibility to be resolved by the fact finder. Binh v. Bagland USA, Inc., 286 A.D.2d 613, 614 (1st Dep't 2001).
NYCHA also argues in its motion that Polanco targeted Alvarez, which severed any causal connection between its alleged negligence and Alvarez's injuries. However, I find that NYCHA failed to demonstrate that Polanco's acts were "truly extraordinary and unforeseeable" such that it served to break the causal connection between any negligence on the part of NYCHA and Alvarez's injuries. Tarter v. Schildkraut, 151 A.D.2d 414, 416 (1 st Dep't 1989). A reasonable jury could infer from the evidence that reasonable security measures would have deterred Polanco's sexual assault of Alvarez.
Further, issues of fact exist as to whether the sexual assault on the roof was foreseeable. NYCHA's superintendent Anthony Dingle testified that his staff found condoms and drug paraphenalia on the roof prior to the assault even though tenants were prohibited from accessing the roof. "If it is found that the attack on plaintiff was foreseeable, it would follow, as a matter of law, that defendant breached its duty to plaintiff to provide reasonable security." Bonano v. S.Z. Realty Corp., 256 A.D.2d 268, 268 (1st Dep't 1998).
To the extent that NYCHA argues that it was not negligent in failing to provide a roof alarm or undertake other security measures, I find that the issue of what safety precautions were reasonably required in the circumstances is a question for the jury. Nallan v. Helms ley-Spear, Inc., 50 N.Y.2d 507, 520 n. 8 (1980); Tarter, 151 A.D.2d at 415. Although NYCHA is not required to provide police protection at the building, as a landlord, it must take minimal security precautions even in the absence of a particular statutory obligation to do so. Dawson v. New York City Housing Authority, 203 A.D.2d 55, 55 (1st Dep't 1994); Kelly v. Metropolitan Ins. and Annuity Co., 82 A.D.3d 16, 23 (1st Dep't 2011).
Based on NYCHA's failure to demonstrate the absence of material issues of fact, I deny NYCHA's motion for summary judgment dismissing the complaint.
In accordance with the foregoing, it is
ORDERED that New York City Housing Authority's motion for summary judgment dismissing the complaint pursuant to CPLR § 3212 is denied.
This constitutes the decision and order of this Court. Dated: New York, New York
July 23, 2013
ENTER:
_________________
Saliann Scarpulla, J.S.C.