Opinion
January 20, 2000
Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered November 13, 1998, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Arnold E. DiJoseph, III, for plaintiff-appellant.
Matthew T. McLaughlin, for defendant-respondent.
WILLIAMS, J.P., MAZZARELLI, WALLACH, ANDRIAS, FRIEDMAN, JJ.
In this wrongful death action, plaintiff alleges that defendant's failure to properly secure its premises against intruders caused the death of plaintiff's decedent. However, because plaintiff, in response to defendant's prima facie showing of entitlement to judgment as a matter of law (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Zuckerman v. City of New York, 49 N.Y.2d 557, 562), failed to present evidence sufficient to raise an issue as to whether the assailant of plaintiff's decedent was, in fact, an intruder who gained access to the decedent's apartment by reason of inadequate building security, summary judgment dismissing the complaint was properly granted (see, Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 551;Smith v. New York City Hous. Auth., ___ A.D.2d ___, 689 N.Y.S.2d 237, 239, lv denied ___ N Y 2d ___, 1999 N.Y. LEXIS 3711). We note in this connection that the doctrine set forth in Noseworthy v. City of New York ( 298 N.Y. 76) has no application at bar because defendant's knowledge respecting the circumstances of the decedent's death is no greater than plaintiff's (Lynn v. Lynn, 216 A.D.2d 194, 195,citing Wright v. New York City Hous. Auth., 208 A.D.2d 327, 332).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.