Opinion
10909 Index 304009/13
01-28-2020
Gregorio CLOTTER, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Marder, Eskesen & Nass, New York (Joseph B. Parise of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Marder, Eskesen & Nass, New York (Joseph B. Parise of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for respondent.
Friedman, J.P., Webber, Kern, Gonza´lez, JJ.
NYCHA failed to eliminate an issue of fact as to whether it was " ‘more likely or more reasonable than not’ " that the man who shot plaintiff in the leg in front of his apartment door was an intruder " ‘who gained access to the premises through a negligently maintained entrance’ " ( Torres v. New York City Hous. Auth. , 93 N.Y.2d 828, 830, 687 N.Y.S.2d 618, 710 N.E.2d 264 [1999], quoting Burgos v. Aqueduct Realty Corp. , 92 N.Y.2d 544, 548, 684 N.Y.S.2d 139, 706 N.E.2d 1163 [1998] ). Plaintiff testified that a man spoke to him on the sidewalk just outside the building, asking where he could find drugs, and that, after plaintiff entered through the unlocked front entrance and walked up the stairs to his floor and along the hall 10 feet to his apartment, he saw the man again when he heard the door to the stairwell open, and the man held him up at gunpoint.
From plaintiff's familiarity with building residents, the history of ongoing criminal activity, and the assailant's failure to conceal his or her identity a jury could reasonably infer "that the assailant was more likely than not an intruder" ( Laniox v. City of New York, 170 A.D.3d 519, 520, 96 N.Y.S.3d 202 [1st Dept. 2019], affd 34 N.Y.3d 994, 114 N.Y.S.3d 44, 137 N.E.3d 499 [2019] ). Plaintiff informed the police that he could identify the assailant if shown a photograph (see Patton v. New York City Hous. Auth. , 140 A.D.3d 659, 660, 33 N.Y.S.3d 719 [1st Dept. 2016] ; Esteves v. City of New York, 44 A.D.3d 538, 539, 844 N.Y.S.2d 33 [1st Dept. 2007] ). NYCHA's evidence also showed that there was a robbery inside the building about 18 months before plaintiff's incident, requiring repairs to the front door lock, and various shootings on the grounds (see Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294–295, 598 N.Y.S.2d 160, 614 N.E.2d 723 [1993] ).
Contrary to NYCHA's contention, there is enough evidence as to how the assailant gained entry to the building to require consideration of whether NYCHA had actual or constructive notice of the nonfunctioning door lock (see Maria S. v. Willow Enters. , 234 A.D.2d 177, 178, 651 N.Y.S.2d 486 [1st Dept. 1996] ). A jury could infer from plaintiff's testimony that the assailant entered the building himself and did not need to wait for anyone in the lobby to open the door for him.
Nor does its evidence demonstrate that NYCHA did not have constructive notice of the nonfunctioning door lock, since plaintiff testified that the lock was not functioning the day before and the day of the incident, but the last daily maintenance checklist produced by NYCHA, which included the front door lock, was dated two days before the incident (see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011] ).