Opinion
# 2021-032-014 Claim No. 129945 Motion No. M-95438
01-22-2021
BAILEY v. STATE OF NEW YORK and STATE UNIVERSITY OF NEW YORK
O'Connell & Aronowitz By: Stephen R. Coffey, Esq. Fitzgerald Morris Baker Firth PC By: Joshua D. Lindy, Esq.
Synopsis
Defendant's motion for summary judgment denied. Factual questions exist as to whether SUNY Albany provided reasonable security measures to protect claimant from foreseeable harm, namely a sexual assault in her dormitory room. Factual issues also exist as to whether SUNY Albany's negligence proximately caused claimant's injuries.
Case information
| UID: | 2021-032-014 |
| Claimant(s): | P. R.B. |
| Claimant short name: | BAILEY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK and STATE UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129945 |
| Motion number(s): | M-95438 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | O'Connell & Aronowitz By: Stephen R. Coffey, Esq. |
| Defendant's attorney: | Fitzgerald Morris Baker Firth PC By: Joshua D. Lindy, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | January 22, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim was filed on July 6, 2017. Issue was joined on August 8, 2017. The salient facts of the incident underlying the claim are not in dispute. During the early morning hours of October 23, 2016, claimant, a student at the State University of New York at Albany (SUNY Albany) at the time, was sexually assaulted in her dormitory room by Franklin Casatelli, a recent parolee who gained entry into claimant's dormitory room in Stuyvesant Tower. Casatelli was subsequently convicted of rape in Albany County Court and was sentenced to 37 years in prison on December 5, 2018. The claim asserts several theories of liability including that defendant: (1) created a dangerous and unsafe environment for claimant as a resident in an on-campus dormitory; (2) failed to install proper security devices, including locks; (3) failed to otherwise provide appropriate security measures in Stuyvesant Tower; and (4) failed to provide an adequate amount of security to students in order to prevent individuals from gaining unauthorized access to dormitory rooms. Following the completion of discovery and the filing of the note of issue, defendant now moves for summary judgment and dismissal of the claim. Claimant opposes the motion.
FACTS
In October 2016, claimant was in her sophomore year at SUNY Albany. In August 2015--the beginning of claimant's freshman year--claimant participated in a new student orientation at SUNY Albany. During the orientation, the incoming students participated in information sessions regarding campus living. The orientation presenters explained to the students that they all have a personalized swipe card that gives them access to buildings, including their dormitories. They also explained to the students the importance of keeping the personalized swipe card secured. As to non-students accessing the building, the presenters instructed the students that they should not hold the door open for anyone. Claimant also testified that she and the other students were instructed during orientation to avoid allowing people to catch the door if they were entering or exiting a building with a locked door.
Claimant resided in Stuyvesant Tower in suite 402, which is on the fourth floor. The suite consisted of three bedrooms and a common area. Each bedroom had two occupants. The common area had a door leading to the main hallway. The suite door and each bedroom door were equipped with locks. The bedroom had a deadbolt lock which could be locked from inside the room. The type of lock on the suite door required that it be locked from the outside. To gain access to the locked front door of the building, residents would swipe their swipe card.
Claimant explained that each person in the suite had a suite key. In order to lock the door into the suite, an occupant needed to turn the key 360 degrees in one direction. If the key were turned 360 degrees in the other direction, the door would stay unlocked. Claimant testified that she preferred that the suite door be set on its locked setting at all times. However, some girls in the suite would sometimes set the door to its unlocked setting in order to allow their boyfriends to access the suite. Claimant stated that Shanice and Kyra were the suitemates who would occasionally unlock the door, which created issues among the suitemates. Sometimes claimant would lock the door at night and then wake up to leave for class in the morning and find the door unlocked. She would send those suitemates text messages or leave notes on the bathroom mirror to address the issue but otherwise did not do anything further to address the lock issue. The issue would be resolved for about week but then Shanice and Kyra would continue unlocking the door. Claimant testified that she felt safe in the dormitory but sometimes felt unsafe in the suite because Shanice or Kyra's boyfriend would walk in unannounced at times when claimant was doing homework in the common area. Other than that issue, she generally felt safe in the suite and in her room. She did not raise the door-locking issue with her Resident Advisor nor did she complain about any safety issues with any other SUNY Albany employee. She also testified that there was never a time where the lock from the hallway to the suite was not working properly during that academic year.
On the night of October 22, 2016, claimant testified that she and her roommate, Catherine, attended an off-campus party. They left their dormitory at about 10:00 p.m. and rode the bus to the party, arriving at about 10:30 p.m. Claimant testified that she drank the alcohol provided at the party. She does not remember how much she drank, but testified that she was not "blackout drunk" (Affirmation of Joshua D. Lindy, Esq., Exhibit D, p. 79), although she vomited twice that night. Claimant, Catherine and two other friends, Megan and Sarah, took the bus back to campus at about 1:30 a.m. Megan escorted claimant and Catherine back to their dormitory room. Once claimant arrived back at her room, she "didn't even go to the bathroom to take [her] makeup off, to brush [her] teeth, [she] just went right into [her] dorm room, took off [her] pants and dove into bed . . ." (id. at 80). The next thing she remembered was waking up to Casatelli raping her. She told him to stop and to get off of her and eventually got him to leave the suite. She called 911 and was taken to the hospital in an ambulance.
During claimant's ordeal, her roommate, Catherine, was asleep next to her. Claimant testified that she does not know how Casatelli got into her room and does not know if anybody let him into the room. After the incident, Catherine apologized to claimant because she assumed that she was the one who left the bedroom door unlocked or open.
Assistant Chief of Police Aran Mull testified that he joined the New York State University Police in 1989 and was transferred to SUNY Albany as a patrol officer in 1995. He was promoted to the position of Lieutenant in 2002 and Assistant Chief of Police in 2014. One of the University Police Department's (UPD) duties is to educate SUNY Albany students on safety. Mull testified that he wrote the PowerPoint presentation that was used in presentations to students and their parents during orientation week.
Mull testified that "tailgating" happens on the SUNY Albany campus every day and defined tailgating as "people following other people in when the doors open" in various buildings around campus (Lindy Aff., Exhibit E, p. 59). He further testified that he and his UPD colleagues make a point at every orientation to tell students not to allow people to follow them through doors that required a swipe card.
With regard to claimant's suite door in particular, Mull stated: "I know that her suite door was capable of locking, in its default position, was locking automatically, if you allowed the door to close. If you turned the key a quarter turn, the door would unlock, you could open the door and go in, and the door would lock behind you. If you turned the key 360 degrees in the other direction and made it click, then you could set the door to be unlocked" (Lindy Aff., Exhibit E, p. 86). He described the door as a "self-locking door" unless it was set to be unlocked (id. at 98). Mull stated that he did not believe that there was any way to tell from inside the room whether the door was locked or unlocked.
Based on the information that Mull received following claimant's rape, it was his understanding that one of the suitemates had left the suite door open so that their boyfriend could come into the room and that the bedroom door was left unlocked by claimant's roommate. He stated that Casatelli likely "tailgated" into the building (Lindy Aff., Exhibit E, p. 95). Mull stated that it was his opinion that all of the keys used to access dormitories should be changed to swipe cards, because they can be tracked and deactivated more efficiently if they are lost. He stated that the swipe cards were better "from a preventative and investigative perspective" (Lindy Aff., Exhibit E, pp. 101-102). Mull also stated that assigning a student to sit at the dormitory entrance may not make the building more secure because in other areas of the campus, UPD has "used students and found them to be very poor at keeping out people who should not be in those venues" (id. at 123). In order to assign UPD officers to staff every residence hall, Mull stated that such an endeavor would more than triple the size of their department.
Pursuant to the Clery Act, SUNY Albany listed 26 reported rapes that occurred in residence halls on campus in 2016. Mull could not say how many of those reported rapes were perpetrated on the student by a stranger, but he stated that he was "not aware of a stranger rape that's occurred on this campus" with the exception of Casatelli (Lindy Aff., Exhibit E, p. 115). There were also 17 reported burglaries listed in the Clery Act disclosure where people were in rooms that they should not have been in, but Mull stated that the vast majority of burglaries where UPD makes an arrest are committed by a dormitory resident.
John Giarrusso is the Associate Vice President for Facilities at SUNY Albany and has held that position for 14 years. Giarrusso stated that it was SUNY Albany's responsibility to ensure that the locking system used in dormitories was safe. He testified that the locks in claimant's dormitory had "been reliable, durable and effective" prior to claimant's rape and that he had no reason to question them prior to claimant's rape (Lindy Aff., Exhibit F, p. 7). Prior to opening the dormitories each semester, Residence Life staff tests all of the keys and locks for the rooms in the dormitories. Before claimant's rape, there had been discussions about changing the locks in the dormitory rooms to swipe card access as the particular dormitory was undergoing renovations. Giarrusso stated that "[w]ith every capital renovation job, it's a collaborative process that has led over time to putting card swipes on exterior doors and card swipes on suite room doors on buildings that are either new or gut renovated, but not on bedroom doors, those are still traditional keys and locks" (id. at 8). The bedroom doors have a thumb latch which locks the door and requires a key to open the locked door from the outside. From an administrative perspective, Giarrusso explained that changing suite room doors to card swipes was preferred because of the hassle in issuing physical keys to residents and the time and manpower associated with replacing keys and changing the cylinder on the door in cases where a key is reported lost. It would be expensive to change every door on campus from a key to a swipe card system. After claimant's rape, there was a discussion among SUNY Albany personnel as to the locks on the suite door, but Giarrusso stated that the locks were not deemed "deficient" (id. at 72). Nevertheless, Giarrusso conversed with other SUNY Albany personnel by e-mail on what it would cost to change the locks on all suite doors to swipe card access locks that lock automatically. He estimated that it would cost somewhere between one and five million dollars to switch the suite doors to swipe card access. Giarrusso explained that the locks on the suite doors had been "successful" for many years and that the circumstances of claimant's rape was not a recurring issue (id. at 76-77).
The entrance doors into the dormitories employ a swipe card system and the door locks automatically when it closes. As to the locks on the suite doors in Dutch Quad, where claimant resided, he stated that "if the door is set in the unlocked position, it would remain unlocked. If it's set in the locked position, it remained in the locked position and you need your key to get in" (Lindy Aff., Exhibit F, p. 48). He acknowledged that if someone were standing inside the suite, they would have no way of knowing whether the door was set to a locked position.
Giarrusso was aware in 2016 that underage alcohol and drug use occurred on campus and that underage drinking and drug use would affect campus safety. It was foreseeable that an intoxicated or impaired student may return to their dormitory room and become confused and forget to lock their door. In regard to relying on students to lock the doors, he acknowledged that "the use of a lock is dependent on someone being able to employ the lock" (id. at 14-15), and that human error is a factor in whether the locks are effective.
Carol Perrin is the Director of Residential Life at SUNY Albany. She testified that the front entrance doors in Dutch Quad were switched to swipe card access around the year 2000. There are four Quads on SUNY Albany's campus and each Quad consists of nine buildings. She explained that switching the locks on dormitory doors was more efficient "[b]ecause now you're not cutting keys, issuing keys, changing locks. You can reissue a card. You can do it remotely 24/7" (Affirmation of Stephen R. Coffey, Esq., Exhibit A, p. 40). She stated that a rape on campus would not prompt SUNY Albany to change an entire lock system. After claimant's rape, Perrin stated that university officials asked for information on the cost to change all suite door locks to a version that locked automatically. Perrin stated that she did not agree with changing the locks because there was nothing wrong with the existing locks. There are three types of door locks that are utilized on campus. One is a lock with swipe card access that automatically locks when closed. The second is a manual lock that opens with a key. This lock automatically locks when closed but can be set to an unlocked setting by pressing a button on the lock. The third type of lock is the type of lock that was on claimant's suite door. This lock can be set to an unlocked setting if turned in a certain direction. Perrin was aware that there were times where students inadvertently left their doors unlocked. This would not happen if the door had an automatic lock. Although there was no way to override the swipe card lock, Perrin stated that students sometimes propped the doors open or put tape on the doors to allow access without a card. Of the nine buildings in Dutch Quad, three had automatic locks or swipe card access on the suite doors, while six did not. She acknowledged that statistics showed that sex crimes on SUNY Albany's campus increased from 2014 to 2016.
Catherine Sullivan lived with claimant during their freshman year at SUNY Albany. For their sophomore year, they decided to live together again on Dutch Quad in Stuyvesant Tower (the suite) and shared a bedroom. On the night of October 22, 2016, Sullivan went to an off campus party with claimant. After taking the bus back to campus later that night, claimant vomited before they reached their dormitory. Sullivan said that they were both intoxicated but that claimant was not "uncontrollable" or "falling down" (Lindy Aff., Exhibit G, p. 23). When they reached Stuyvesant Tower, there were a crowd of people at the entrance door. She could not remember who swiped their card to get into the building. She stated: "So I can't remember who swiped the card, I don't believe it was any of us in the crowd of people, and then once the door opens, everybody just kind of goes in" (id. at 24). Even though they are told not to let people into the building at orientation, Sullivan said it happened all the time. Once they arrived at their suite door, Sullivan did not remember if the door was locked or unlocked. When they entered their bedroom, claimant went straight to bed. Sullivan used the bathroom and then closed their bedroom door and went to sleep. Claimant later woke her up stating that a man had been in their room.
Sullivan did not remember exactly how the lock on the suite door worked but stated that she knew if you turned the key one way, the door would unlock but then stay locked. If the key were turned the other way, the door would unlock and stay unlocked. There was no way of knowing if the door was locked or unlocked from inside the suite. There had been times when Sullivan became confused when using the lock. She described the lock as "old," "confusing" and "kind of unreliable" because there was no good way of knowing if the door was locked or unlocked (Lindy Aff., Exhibit G, pp. 52-53). There was a latch on Sullivan and claimant's bedroom door that would lock. She stated that they locked the bedroom door every night but she did not know if it was locked the night of the rape. Both the suite door and the bedroom door had the ability to be locked on the night of the rape. Sullivan stated that sometimes their other suitemates would leave the suite door unlocked so that their boyfriends could enter the suite. Usually, Shanice would leave the door open, but Sullivan never had a discussion with her about it nor did she discuss the issue with anyone at SUNY Albany.
Shanice Morgan lived in the same suite as claimant during her sophomore year. She stated that their suite door would "mostly remain unlocked" even though it could be locked (Lindy Aff., Exhibit H, p. 21). The suitemates never had a discussion about keeping the door locked or unlocked. On the night of the rape, Morgan was in her room all night. She had a boyfriend at the time but he did not come to her room that night. She stated it was common knowledge that residents should not let people they do not know into the building.
Claimant submitted the affidavit of Randall C. Oxley, the President and CEO of Lock Design Company --a position he has held since 1984. Oxley has been a certified locksmith for over 45 years. Lock Design Company designs, patents, manufactures, services and markets products for the security hardware industry and evaluates security needs. Oxley reviewed photographs of the main door to the Dutch Quad building; claimant's suite door as seen from the hallway; and claimant's suite door as seen from the inside of the suite. He observed that the entrance doors to the building were accessible by key card access and that the door locks automatically upon closure.
Oxley explained that the lock on claimant's suite door is a Corbin Mortise ML-2055, which is typically known in the lock industry as a "classroom" lock (Oxley Aff. ¶¶ 18-19). He explained that, from the outside doorway, the ML-2055 can be unlocked and remain unlocked if the key is turned counterclockwise 360 degrees. To relock the door, the key must be turned clockwise 360 degrees. The door can be unlocked yet remain locked if the key is turned clockwise approximately 90 degrees. If the door is locked and opened this way, there is no need to relock the door because it will lock automatically. From inside the suite, there is no locking mechanism and the door cannot be locked or unlocked. There is no indicator from inside the suite as to whether the door is locked or unlocked, therefore a person inside the suite must go outside into the hallway to determine if the door is locked or unlocked.
Oxley stated that the ML-2055 is "wholly inappropriate" for a dormitory setting and is not intended for dormitory suites (Oxley Aff. ¶ 21). He opined that the door is appropriate for a classroom setting as it would prevent a student from locking the door from inside the classroom. Oxley understood that the ML-2055 was the original type of lock installed on Dutch Quad when it was constructed in the 1960s. He opined, to a reasonable degree of certainty, "that the lock employed in the Dutch Quad suite in 2016 was not in accordance with industry standards" (Oxley Aff. ¶ 37).
Claimant also submitted the expert affidavit of Norman D. Bates in opposition to defendant's motion. Bates reviewed the deposition testimony summarized above in addition to photographs taken by the police following the incident; SUNY's crime data/incident reports; SUNY's Clery Reports; and documents produced by defendant in response to claimant's discovery demands.
In its Reply Memorandum of Law filed on August 31, 2020, defendant argued that the Court should disregard Bates' affidavit because it failed to lay a foundation for Bates' expert opinion. On September 2, 2020, claimant submitted a letter to the Court requesting permission to amend the opposition papers to include Bates' curriculum vitae which was inadvertently excluded. On that same date, defendant requested that the Court allow defendant to amend its reply papers if claimant were permitted to amend her opposition papers. The Court granted both requests. Claimant filed Bates' curriculum vitae on September 3, 2020 and defendant filed a Supplemental Affirmation in Reply on September 10, 2020.
Bates is an expert in the field of security, including security involving colleges and Clery Reports. He has acted as a security expert for 35 years and has extensive experience in rendering expert opinions. He is the President and Founder of Liability Consultants, Inc. in Hudson, Massachusetts providing security management and liability consulting services to both private and public sector entities. He has held this position since 1986. He is a member of several professional organizations including the International Association of Professional Security Consultants and ASIS International. He was a Commission Member of ASIS International's Commission on Guideline and Chairman of the American Society for Testing and Material's Subcommittee on Premises Security Liability and is currently the Chairman of the International Association of Professional Security Consultants' Best Practices and Forensic Security Committee. He was a member of the University of Massachusetts' Security Management Program Advisory Committee from 1993 to 1995 and a member of Newbury College's Advisory Committee from 1992 to 1995. Bates has also published several books and articles related to premises security and has consulted on the drafting of legislation related to security issues in the Massachusetts Legislature. He holds a Bachelor of Science in Criminal Justice from Northeastern University and a Juris Doctorate from Suffolk University Law School. He attended numerous seminars and training programs at the Massachusetts Criminal Justice Training Council and ASIS International.
Defendant argues that Bates' curriculum vitae fails to lay a foundation for his expert opinion. The Court disagrees. "A precondition to the admissibility of expert testimony is that the proposed expert is 'possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable' " (Flanger v 2461 Elm Realty Corp., 123 AD3d 1196, 1197, [3d Dept. 2014], quoting Matott v Ward, 48 NY2d 455, 459 [1979]). The Court finds that Bates' education and extensive experience in security-related issues, including premises security specifically, renders his opinion reliable.
Bates' affidavit includes a chart of the incidents reported to SUNY Albany UPD from October 24, 2013 through October 23, 2016, showing 26 incidents of assaults, sexual assaults and unauthorized entries in dormitory rooms for the three years preceding claimant's assault. Bates also cited several publications showing that college women are at greater risk of sexual assault than their non-college peers. Bates cited Perrin's acknowledgment that sex crimes increased on SUNY Albany's campus from 2014 to 2016 and opined that "[g]iven the history of sexual assaults, the inherent risk of sexual assaults in a campus setting and the Defendants' acknowledgment of the risk of sexual assault/rape, the sexual assault of the Plaintiff was a foreseeable event" (Bates Affidavit ¶ 21).
As to the mechanical lock on claimant's suite door, Bates pointed out that the mechanical lock on the suite door could be set so that it remains unlocked while the remainder of the suite doors on campus locked automatically and could not be left unlocked (Bates Aff. ¶ 37). This locking mechanism could be left unintentionally unlocked. Bates cited to several security publications which state that dormitory rooms should have self-locking doors to prevent unwanted intrusion into the rooms (id. ¶ 48). Not only was the suite door not self-locking, there was also no way to tell from the inside of the suite whether the door was locked. Bates opined that, for security purposes, the option to leave the suite door unlocked should have been eliminated, especially because SUNY Albany did not staff the dormitory lobby with a person to screen visitors. It was also feasible for SUNY Albany to install automatically locking doors since they had done so in other dormitories. Thus, Bates opined to a reasonable degree of professional certainty "that Defendants failed to provide effective and adequate security measures to reasonably ensure the safety and protection of the [Claimant] against sexual assault" (Bates Aff. ¶ 58).
LAW AND DISCUSSION
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 [1980]). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, claimant (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
Before addressing the State's potential liability, the Court must first determine whether defendant's allegedly negligent acts were undertaken in a governmental or proprietary capacity. Where the State acts in a governmental capacity, it may only be liable if engaged in a ministerial act and claimant proves that a special duty existed (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 [2013]). Where the State acts in a proprietary capacity, it is subject to the "ordinary rules of negligence applicable to non governmental parties" (see id. at 425; see also Price v New York City Hous. Auth., 92 NY2d 553, 557-558 [1998] [finding that "[w]hen a public entity acts in a proprietary capacity as a landlord, it is held to the same duty as private landlords in providing security devices in the building"]).
The Court of Appeals has recognized that "[a] governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its government and proprietary functions" (Miller v State of New York, 62 NY2d 506, 511-512 [1984]). In Miller, a 19-year-old junior at the State University of New York at Stony Brook was raped by an intruder in the laundry room of her dormitory. The Court held that the claim set forth two separate theories of liability, one for inadequate police protection and one for negligence stemming from the defendant's failure to lock the entrance doors to the dormitory. The claimant could maintain the claim against defendant for its failure to provide minimal security measures in its proprietary capacity as a landlord, i.e. the failure to lock the entrance doors. Here, claimant's allegations that SUNY Albany failed to provide minimal security measures clearly implicate defendant's proprietary function as a landlord and ordinary negligence principles apply to those claims. To the extent that the claim asserts that defendant failed to provide adequate police protection, such a claim implicates defendant's "allocation of finite police resources" which is a governmental function (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 452 [2011]). Therefore, claimant cannot maintain a cause of action based on defendant's alleged failure to provide police security in the dormitories.
Turning then to claimant's allegations regarding defendant's alleged negligence in failing to provide adequate non-police security measures, "[l]andlords have a common-law duty 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 NY2d 875, 878 [2001]; see also Burgos v Aqueduct Realty Corp., 92 NY2d 544 [1998]).Whether prior criminal conduct renders criminal intrusion reasonably foreseeable depends upon "the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question" (Jacqueline S. v City of New York, 81 NY2d 288, 295 [1993]; see also Six Anonymous Plaintiffs v Gehres, 68 AD3d 1177 [3d Dept. 2009], lv denied 14 NY3d 710 [2010]). Before imposing a duty upon a landlord to take minimal precautions to protect tenants from foreseeable harm, a claimant must establish that prior criminal activity was "sufficiently similar" to the crime that is the subject of the action (Milton v I.B.P.O.E. of World Forest City Lodge, No. 180, 121 AD3d 1391, 1393 [3d Dept. 2014]). "[A]lthough foreseeability is generally an issue to be resolved by the factfinder, it may be determined as a matter of law where the facts are undisputed and permit only one inference to be drawn therefrom" (id. at 1392, citing Haire v Bonelli, 107 AD3d 1204 [3d Dept. 2013]).
Here, defendant argues that the sexual assault of claimant was not foreseeable because the record does not reveal any prior similar violent crimes inside the subject premises or on the campus as a whole. Defendant points to Mull's testimony in which he states that in his twenty years of service as a member of the UPD, he could not recall another instance of a stranger rape taking place on campus (Lindy Aff., Exhibit E, p. 115). Defendant also compares the data on crime on SUNY Albany's campus to "ambient neighborhood crime" which is insufficient to establish foreseeability (see Milton, supra at 1393, quoting Johnson v City of New York, 7 AD3d 577, 578 [2004], lv denied 4 NY3d 702 [2004]).
In response, claimant points to the chart compiled by Bates listing 26 criminal incidents reported to SUNY Albany UPD from October 24, 2013 through October 23, 2016. Of the 26 incidents, five involved a sexual offense or an unidentified person who entered the victim's room (Bates Aff. ¶ 11). Three of the five incidents involved an unknown intruder entering the victim's room and committing a sex offense. The other two incidents referenced by Bates as similar to the instant claim were unauthorized entries into the victim's room. In one incident, which occurred in Stuyvesant Tower on August 29, 2014, students reported that another student entered their suite and that "they felt something was wrong with the suite door lock as it was not locking properly" (Bates Aff., p. 4). The chart also lists several assaults and sexual assaults that occurred in the three years preceding claimant's rape, many of them occurring in dormitories.
The Court finds that the evidence presented by claimant presents an issue of fact as to whether the rape of claimant was reasonably foreseeable. In Miller v State of New York, foreseeability was established based in part on the school newspaper's report of numerous crimes occurring in the dormitories, including burglaries, criminal trespass and at least one rape (Miller v State of New York, 62 NY2d at 509). Bates' affidavit lists several similar crimes that occurred on the SUNY Albany campus in the three years preceding claimant's rape. The fact that the crimes occurred elsewhere on campus does not foreclose an eventual finding of foreseeability as there is no requirement that "the past experience relied on to establish foreseeability be of criminal activity at the exact location where [claimant] was harmed or that it be of the same type of criminal conduct to which [claimant] was subjected" (Jacqueline S. v City of New York, 81 NY2d at 294 [finding a question of fact as to foreseeability where crimes occurred in other buildings located in the same housing complex]). In the context of colleges and universities, statistical data of crimes committed on campus has been found to establish a factual issue as to foreseeability (A.K. v State of New York, 2004 WL 7332752, *4 [Ct Cl, Fitzpatrick, J., June 1, 2004]; Nieswand v Cornell Univ., 692 F Supp 1464, 1468 [NDNY 1988]). The crime statistics are not similar to "ambient neighborhood crime" as argued by defendant. While a landlord of a single apartment building may not have notice of the crime statistics of the surrounding neighborhood, Mull and the UPD had notice of the all of the reported crime on SUNY Albany's campus, including sexual assaults. Mull testified that in 2016, 26 rapes were reported on campus (Lindy Aff., Exhibit E, p. 114). He also stated that "[w]e have every year, for years, considered the incident of sexual assault on campus a problem" (id. at 143). Perrin also acknowledged that sex crimes on campus increased from 2014 to 2016 (Coffey Aff., Exhibit A, pp. 75-76). Additionally, Mull testified that "tailgating" happened every day on campus (Lindy Aff., Exhibit E, p. 59-60), thus UPD was aware that people frequently gained access to campus buildings without swiping their access card. Based on the evidence presented, an issue of fact exists as to whether defendant had notice of prior criminal activity that would make Casatelli's attack on claimant reasonably foreseeable.
Defendant next argues that even if the attack was foreseeable, it nevertheless discharged its duty to provide minimal security. Defendant argues that because the front entrance to Stuyvesant Tower, and claimant's suite door and bedroom all had functioning locks, it has discharged its duty to provide minimal security. Claimant argues that a factual issue exists as to whether the lock on the suite door was appropriate given its locking mechanism and a resident's inability to determine whether the door was locked from inside the suite. While "[t]he law does not require the defendants to provide the optimal or most advanced security system available, but only reasonable security measures" (Tarter v Schildkraut, 151 AD2d 414, 415 [1st Dept. 1989], appeal denied 74 NY2d 616 [1989]), "the type of safety measures that building operators and managers are reasonably required to provide is almost always a question of fact . . ." (Wayburn v Madison Land Ltd. Partnership, 282 AD2d 301, 303 [1st Dept. 2001], citing Nallan v Helmsley-Spear Inc., 50 NY2d 507, 520 [1980]).
Here, genuine issues of material fact exist as to whether defendant discharged its duty to provide reasonable security measures. While it is undisputed that the locks on the entrance door and the suite door were functioning, an issue of fact exists as to whether the security measures undertaken by defendant were reasonable. As to the entrance door to Stuyvesant Tower, claimant points to testimony from Mull establishing that UPD was aware that tailgating occurred every day on campus, so much so that the students were warned not to let it happen. The general awareness that this occurred in dormitories with regularity is sufficient to raise a question of fact as to whether defendant took reasonable measures to prevent this practice such as stationing a student at the door to check IDs or installing a security camera (Gonzalez v Riverbay Corp., 150 AD3d at 536 [general awareness of intruder "piggy-backing" into building behind tenant, among other evidence, was sufficient to raise a question of fact]). Additionally, claimant has presented evidence that the lock on claimant's suite door was less secure than other locks employed on suite doors on campus that lock automatically and have no mechanism to be set to unlocked. Further, Oxley opined that the suite lock used in Stuyvesant Tower was wholly inappropriate for use in the dormitories, and SUNY Albany had installed the more secure swipe card access locks in many dormitories on campus.
While defendant cannot be held liable for failing to allocate police resources to provide security at the dormitories (Miller v State of New York, 62 NY2d at 512), courts have held that providing lobby attendants could be a reasonable security measure expected from landlords depending on the factual circumstances of a claim (see Gonzalez v Riverbay Corp., 150 AD3d 535, 536 [1st Dept. 2017]; Nallan v Helmsley-Spear Inc., 50 NY2d at 520).
Lastly, defendant argues that there is no testimony or other proof in the record to establish how Casatelli gained entrance into Stuyvesant Tower on the night of the incident and therefore claimant cannot establish proximate causation.
In Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550-551 [1998], the Court of Appeals stated:
In premises security cases particularly, 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. Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, plaintiff can recover only if the assailant was an intruder. Without such a requirement, landlords would be exposed to liability for virtually all criminal activity in their buildings. By the same token, because victims of criminal assaults often cannot identify their attackers, a blanket rule precluding recovery whenever the attacker remains unidentified would place an impossible burden on tenants. Moreover, such a rule would undermine the deterrent effect of tort law on negligent landlords, diminishing their incentive to provide and maintain the minimally required security for their tenants (see, e.g., Prosser and Keeton, Torts § 4, at 25-26 [5th ed]).
Defendant argues that claimant cannot establish proximate causation because claimant cannot establish how Casatelli gained entrance to the building. While Casatelli's mode of entrance into the building has not been established, claimant need only "present evidence from which intruder status may reasonably be inferred" (Burgos v Aqueduct Realty Corp., 92 NY2d at 551). Here, it is undisputed that Casatelli was not a student at SUNY Albany and was not a resident of Stuyvesant Tower. Claimant also testified that she did not know Casatelli. Moreover, Mull testified that Casatelli likely "tailgated" into the building (Lindy Aff., Exhibit E, p. 95). Thus, factual issues exist as to proximate causation (see Gonzalez v Riverbay Corp., 150 AD3d at 536).
Claimant's failure to lock the suite door and bedroom door does not necessarily constitute an intervening cause that would sever defendant's liability, as argued by defendant. Based on the facts of this case, it cannot be said that, as a matter of law, claimant's failure to lock the suite door and the bedroom door constituted an intervening cause, especially where as here, a question of fact exists as to whether the suite door lock was sufficient (see Mason v U.E.S.S. Leasing Corp., 274 AD2d 79, 82 [1st Dept. 2000], affd 96 NY2d 875 [2001]).
Based upon the foregoing, defendant's motion for summary judgment (M-95438) is DENIED. The Court will contact the parties regarding a telephone conference to schedule a trial date.
January 22, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated May 28, 2020; and Affirmation in Support of Motion for Summary Judgment, affirmed by Joshua D. Lindy, Esq. on May 21, 2020, with Exhibits A through K annexed thereto; and Memorandum of Law. 2. Affirmation of Stephen R. Coffey, Esq., with Exhibit A annexed thereto; Memorandum of Law dated July 31, 2020. 3. Affidavit of P.R.B., sworn to on July 31, 2020. 4. Affidavit of Norman D. Bates, sworn to on July 31, 2020. 5. Affidavit of Randall C. Oxley, with Exhibits, sworn to on July 31, 2020. 6. Affirmation in Reply and in Further Support of Motion for Summary Judgment, affirmed by Joshua D. Lindy, Esq. on August 31, 2020; and Memorandum of Law. 7. Affidavit of Norman D. Bates, sworn to on September 2, 2020 with Attachment. 8. Supplemental Affirmation in Reply and in Further Support of Motion for Summary Judgment, affirmed by Joshua D. Lindy, Esq. on September 10, 2020, with Exhibit A annexed thereto.