Urich v. 765 Riverside LLC

Urich v 765 Riverside LLC (2015 NY Slip Op 00826)

Urich v 765 Riverside LLC

2015 NY Slip Op 00826

Decided on February 3, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 3, 2015
Friedman, J.P., Andrias, Saxe, Richter, Gische, JJ.

14134 590681/13

[*1] Claire Urich, 155157/12E Plaintiff-Respondent,

v

765 Riverside LLC, et al., Defendants-Appellants. [And a Third-Party Action]

Carol R. Finocchio, New York, for appellants.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered June 25, 2014, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In opposition to defendants' prima facie showing that the locks on the entrances to the building were working on the date of the criminal attack on plaintiff, plaintiff raised an issue of fact as to whether her assailant gained entry through a side entrance (see Burgos v Aqueduct Realty Corp. , 92 NY2d 544 [1998]). She submitted tenants' affidavits saying that there was a recurring problem with the side door to the building, i.e., that it did not close completely, and that, on or about the date of the assault, the lock on that door "would spin so that any key could open [it]." Moreover, plaintiff presented evidence raising an issue of fact as to the foreseeability of the attack (see Jacqueline S. v City of New York , 81 NY2d 288, 293—294 [1993]). She submitted a letter sent to defendant building manager by a group of tenants 18 months before the assault on her complaining of a break-in that resulted in destruction of property, intruders smoking marijuana on the roof, the service elevator being used for "drug drops," and the building becoming a target for people "to easily enter . . ., conduct illegal activities and escape without [*2]apprehension," and requesting, inter alia, that the building's locks be replaced rather than waiting "for tragedy to strike."

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 3, 2015

CLERK