Opinion
2013-10-17
Maurice NEW, et al., Plaintiffs–Respondents, v. NEW YORK STATE URBAN DEVELOPMENT CORP., et al., Defendants–Appellants.
Cartafalsa, Slattery, Turpin & Lenoff, Tarrytown (Patricia A. Hughes of counsel), for New York State Urban Development Corp., Twin Parks Southeast Houses Incorporated, D.U. Second Realty, BSR Management Corp. and Riverside Management Corporation, appellants. Lewis Johs Avallone Aviles, LLP, Islandia (Robert A. Lifson of counsel), for Madison Security Group, Inc., appellant.
Cartafalsa, Slattery, Turpin & Lenoff, Tarrytown (Patricia A. Hughes of counsel), for New York State Urban Development Corp., Twin Parks Southeast Houses Incorporated, D.U. Second Realty, BSR Management Corp. and Riverside Management Corporation, appellants. Lewis Johs Avallone Aviles, LLP, Islandia (Robert A. Lifson of counsel), for Madison Security Group, Inc., appellant.
Burns & Harris, New York (Christopher J. Donadio of counsel), for respondents.
ACOSTA, J.P., SAXE, RENWICK, DeGRASSE, RICHTER, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered August 8, 2012, which, insofar as appealed from as limited by the briefs, denied defendant Madison Security Group, Inc.'s motion for summary judgment dismissing the complaint, and denied defendants New York State Urban Development Corp., Twin Parks Southeast Houses Incorporated, Inc., D.U. Second Realty, BSR Management Corp., and Riverside Management Corporation's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motions granted, and the complaint dismissed in its entirety. The Clerk is directed to enter judgment accordingly.
Defendants met their prima facie burdens by proffering evidence that there was no proof that the assailant who shot plaintiffs was an intruder as opposed to a building resident or guest. Specifically, plaintiffs testified that they could not even ascertain the assailant's race or gender ( see Price v. New York City Hous. Auth., 92 N.Y.2d 553, 558, 684 N.Y.S.2d 143, 706 N.E.2d 1167 [1998] ). Thus, plaintiffs contention that negligence on part of defendants was a proximate cause of the incident is entirely speculative ( see Maria S. v. Willow Enters., 234 A.D.2d 177, 178, 651 N.Y.S.2d 486 [1st Dept.1996] ). Inasmuch as plaintiffs' arguments in opposition failed to refute defendants' evidence, defendants' motions should have been granted( see Pagan v. Hampton Houses, 187 A.D.2d 325, 325–326, 589 N.Y.S.2d 471 [1st Dept.1992] ).
We add that the affidavit of Madison's former employee was irrelevant inasmuch as it does not address the issue of how the assailant gained entry into the building ( see Maria S., 234 A.D.2d at 178, 651 N.Y.S.2d 486). Moreover, the affidavit appears to have been tailored to avoid the consequences of plaintiffs' depositions ( see Perez v. Abbey Assoc. Corp., 103 A.D.3d 573, 960 N.Y.S.2d 42 [1st Dept.2013]; Morrissey v. New York City Tr. Auth., 100 A.D.3d 464, 953 N.Y.S.2d 503 [1st Dept.2012] ).
We have considered the parties' remaining contentions and find them unavailing or rendered academic in light of the foregoing.