Bennett v. Twin Parks Northeast Houses, Inc. , 688 N.Y.S.2d 94 ( 1999 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of an issue raised but not determined on the appeal to that court. It is unnecessary to answer the certified question.

The assailant who attacked plaintiff in the lobby and elevator of her apartment building remains unidentified. Plaintiff, however, has raised a triable issue of fact regarding whether it was “more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance” (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 551). Therefore, the lower courts should not have granted summary judgment to defendants on proximate cause grounds.

An issue lingers, however, as to whether defendant Twin Parks is entitled to summary judgment on the alternative ground that it was an out-of-possession titleholder, with no duties or responsibilities concerning the security of the building. While this issue was raised in the courts below, the Appellate Division did not address or resolve it. We therefore reverse and remit to the Appellate Division for determination of the undecided issue.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein. Certified question not answered as unnecessary.