New York Criminal Lawyer Blog
The Facts of the Case:
A New York Drug Posession Lawyer said the plaintiff was a tenant in a building located at Academy Street in Manhattan, owned by defendant-one and managed by defendant-two.
On 26 February 2002, in the early afternoon, plaintiff entered the building through the lone entrance available to the tenants. A man whom plaintiff did not recognize entered the building immediately after her. The man walked ahead of plaintiff up a staircase, which plaintiff was using to reach her unit on the second floor. As plaintiff opened the door to her apartment, the man, who had continued up the staircase when plaintiff walked from the staircase to her unit, ran down the staircase and pushed plaintiff into the apartment. The man then sexually assaulted plaintiff at gunpoint.
Plaintiff commenced an action to recover damages for personal injuries.
Plaintiff claims that defendants failed to provide adequate security for the building; that defendants failed to maintain a working lock on the door to the tenants’ entrance, which failure allowed the assailant to gain entry to the building and assault plaintiff.
A New York Drug Possession Lawyer said the defendants jointly moved for a summary judgment dismissing the complaint on the ground that the assault was not foreseeable; arguing that, although there was drug activity in the surrounding neighborhood, there was no history of criminal activity in the building.
The Issues of the Case:
Are defendants liable to plaintiff? Was the crime foreseeable enough to warrant liability?
The Ruling of the Court:
Building owners and managing agents have a common-law duty to take minimal security precautions to protect tenants from the foreseeable criminal acts of third parties.
As one Justice stated for the Second Department in addressing the issue of whether a crime giving rise to a lawsuit was foreseeable to owners and operators of the building in which the crime occurred: A Nassau County Drug Possession Lawyer said there is no requirement that the past experience relied on to establish foreseeability be of criminal activity at the exact location where plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected, or that the operative proof must be limited to crimes actually occurring in the specific building where the attack took place. However, this does not mean that the criminal activity relied upon by the plaintiffs to support their claim of foreseeability need not be relevant to predicting the crime in question. Rather, to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location.
Defendants met their initial burden of establishing their entitlement to judgment as a matter of law by making a prima facie showing that the sexual assault committed against plaintiff was not reasonably predictable.
In support of defendants’ motion, they submitted the deposition testimony of three witnesses: the plaintiff, an employee of the managing agent and the superintendent of the building. The deposition testimony of these witnesses established nothing more than that, in the words of the employee of the managing agent, there was a lot of drug and drug-related activity in the neighborhood. Moreover, a Queens Drug Possession Lawyer said with respect to the building itself, each witness testified that he or she was not aware of any criminal activity in the building prior to the assault committed against plaintiff.
In opposition to the motion, plaintiff submitted police reports indicating that seven (7) other several criminal activities that had occurred in or near the building prior to the assault. Plaintiff also submitted the affidavit of an expert in the field of premises security who averred, among other things, that the building was in a police precinct with high rates of crime, the drug activity in the neighborhood attracted criminal elements to the neighborhood and the assault on plaintiff was foreseeable.
Upon a review of the records, the court finds that plaintiff’s evidence was insufficient to raise a triable issue of fact with respect to whether the sexual assault was foreseeable, i.e., reasonably predictable.
Of the seven prior instances of criminal activity relied upon by plaintiff, only three involved crimes against the person and none are similar to the sexual assault committed against plaintiff.
Thus, the sexual assault committed against plaintiff was not reasonably predictable based on the prior criminal activity in or near the building.
Without trivializing the criminal activity in and around plaintiff’s building, it must be acknowledged that, except one, the criminal activity plaintiff relies upon consists of low-level crimes.
When one considers that plaintiff includes all the criminal activity in and around the building over a period of more than 4½ years, it also must be acknowledged that the extent of criminal activity plaintiff relies upon is hardly unusual. Quoting what one Justice said: “As the endless supply of crime statistics attest, crime is a fact of life and is foreseeable. Criminal activity is more frequent in our urban centers, although there are marked differences between neighborhoods. However, the courts have repeatedly held that ambient neighborhood crime alone is insufficient to establish foreseeability”.
The fact that a woman entering her apartment in New York City might be subject to a sexual assault is conceivable; but conceivability is not the equivalent of foreseeability.
Accordingly, the motion is granted and the complaint is dismissed.
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