Opinion
November 16, 2000.
Order, Supreme Court, Bronx County (Janice Bowman, J.), entered August 13, 1999, which, in an action to recover for personal injuries sustained by plaintiff building resident allegedly as a result of inadequate building security, granted motions by defendant building owner and third-party defendant elevator maintenance company to dismiss the complaint and third-party complaint, respectively, and denied plaintiff's cross motion for summary judgment on the issue of defendant's liability, unanimously modified, on the law, to deny defendant's and third-party defendant's motions, and otherwise affirmed, without costs.
Barry S. Gedan, for plaintiffs-appellants.
Andrew Zajac, for plaintiff.
George S. Kolbe, for defendant-respondent.
Before: Sullivan, P.J., Rosenberger, Tom, Wallach, Andrias, JJ.
Plaintiff asserts that he was grabbed by an unidentified person in the lobby of the building, but managed to break free and run into the elevator. However, he was pursued by the assailant, who, due to a malfunctioning elevator door, was able to get into the car, where plaintiff was beaten and robbed. Plaintiff also adduces evidence that the problem with the elevator was a recurring one of which defendant had notice; that an entrance door lock had been broken for about a month before the incident, permitting unfettered access to the building's lobby, about which defendant had received numerous complaints from tenants; and of a history of violent crime in the immediate neighborhood. Such evidence, absent countervailing evidence from defendant, suffices to raise an issue of fact as to the intruder status of the assailant (see, Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 551; Brewster v. Prince Apts., 264 A.D.2d 611, 613-614, lv dismissed 94 N.Y.2d 875, lv denied 94 N.Y.2d 762). Accordingly, we modify to reinstate the complaint. The third-party complaint should also be reinstated as it appears to have been dismissed merely because the complaint was dismissed. We have considered and rejected plaintiff's argument that he is entitled to summary judgment on the issue of defendant's liability.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.