Opinion
29745/05.
Decided November 17, 2005.
Plaintiffs appeared pro se, and defendants appeared by Zawrsny Zawrsny, P.C.
Suzannah Phillips and Marguerite Phillips, former tenants at 247 North 8th Street, Brooklyn, are suing Janusz and Barbara Czajka, the owners of the building, for damages arising out of, or related to, burglaries of the apartment that occurred on April 2, 2004 and October 25, 2004. At the September 7, 2005 trial, Plaintiffs were self-represented, and Defendants were represented by counsel. At the conclusion of trial, the parties were invited to make written post-trial submissions, an invitation that Plaintiffs accepted, but Defendants did not.
Marguerite Phillips took possession of Apartment 1R pursuant to an Apartment Lease providing for a one-year term from June 1, 2003 through May 31, 2004. Prior to its expiration, the Lease was renewed through April 30, 2006. From September 2003 until June 2004, Marguerite Phillips shared the apartment with a friend. After the friend left, returning the key to the apartment, Marguerite's sister Suzannah moved in.
The building at 247 North 8th Street contains eight apartments, two on each floor. An outer door provides access from the street into a vestibule; the outer door is not equipped with a lock. An inner door provides access from the vestibule into a hallway and to the apartments; at all times pertinent, the inner door was equipped with a single lock.
Plaintiffs testified that from a time preceding the first burglary in April 2004 and continuing until after the second burglary in October, the lock on the inner door continually malfunctioned, such that the door would open without the key with only a slight push. Apparently in response to complaints made by Plaintiffs and perhaps other tenants, attempts were made to fix the lock, and the lock would function properly for short periods of time before failing again. On the days of the burglaries, the lock was not working, and it was possible to enter the interior of the building without any key.
Complaints were made to the daughter-in-law of the owners, because the owners were not fluent in English. Neither of the owners nor the daughter-in-law testified at trial. Danuta Karwowski, who described herself as "the managing agent" for the building, testified that complaints should have been made to her. The Court is convinced, however, based upon all the evidence, that the owners designated their daughter-in-law as their agent for communications from and to tenants, and that any notice to her would be notice to the owners. ( See Center v. Hampton Affiliates, Inc., 66 NY2d 782, 784; Dollard v. Roberts, 130 NY 269, 273-74.) Based solely on the testimony of Ms. Karwowski, in any event, it is clear that the owners knew about the first burglary.
The building at 247 North 8th Street is located in Williamsburg, currently one of the most popular residential areas in the City, particularly with younger professionals. The block is primarily residential, with several residential buildings, but there is a bakery on the corner and a theater company is located across from 247. Marguerite testified that, at least before the first burglary, she "felt safe and secure" in the neighborhood and the building. She was not aware of any prior burglaries either in the building or on the block.
The first burglary occurred on a Friday afternoon. The burglar apparently gained access to the apartment by tampering with the lock on one of the two doors to the apartment. Computer equipment, a digital camera, and a cellular phone were taken. The burglar was never identified, nor was any of the property recovered. Defendants replaced the lock on the apartment door, but did not change the defective lock on the vestibule door.
The second burglary occurred on a Monday afternoon. This time, the burglar gained entrance to the apartment by apparently kicking open one of the doors, splintering its frame. The thief took replacements that had been purchased for the equipment, camera, and phone stolen during the first burglary, as well as jewelry and other items. Again, the burglar was never identified, and the property not recovered.
Plaintiffs no longer felt safe in the apartment. By this time they had been told by other tenants that in the previous three years there had been three other burglaries and three attempted burglaries in the building. An agreement was reached with the owners that, if Plaintiffs vacated the apartment by October 31, the Lease would be deemed terminated, and the owners would pay Plaintiffs $2,400.00, representing return of a security deposit of $1,200.00 and the agent's fee of $1,200.00 that Marguerite had paid on renting the apartment.
Plaintiffs vacated, and a check in the amount of $2,400.00, drawn on Defendants' account and made payable to Marguerite, was delivered by Defendants. The check was returned, however, to Marguerite's bank because payment had been stopped by the drawer, Janusz Czajka. She was charged a "return item handling" fee of $25.00.
Plaintiffs' claims for damages arising from the burglaries are based upon common law negligence, an alleged violation of Multiple Dwelling Law § 50-a, and the warranty of habitability ( see Real Property Law § 235-b; Park West Management Corp. v. Mitchell, 47 NY2d 316.) Marguerite Phillips also seeks recovery of $2,425.00 based upon the dishonored check, and the Endorsed Complaint claims punitive damages.
Landlords have a "common-law duty to take minimal security precautions against reasonably foreseeable criminal acts by third parties." ( James v. Jamie Towers Housing Co., Inc., 99 NY2d 639, 641; see also Burgos v. Aqueduct Realty Corp., 92 NY2d 544, 548.) "To establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based upon prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location." ( Novikova v. Greenbriar Owners Corp., 258 AD2d 149, 153 [2nd Dept 1999].) The landlord's duty is not limited to protecting tenants from crimes against person, and, if reasonably predictable, may extend to crimes against property. ( See Hassan v. Bellmarc Property Management Services, Inc., 12 AD3d 197, 197 [1st Dept 2004]; Sakhai v. 411 East 57th Street Corp., 272 AD2d 231, 232-33 [1st Dept 2000]; Barcher v. Radovich, 183 AD2d 689, 691 [2nd Dept 1992].)
Although issues of duty and its breach are generally treated separately for analytical purposes, in determining the existence and scope of duty courts will consider "the ability of the defendant to adopt practical means of preventing injury, [and] the possibility that reasonable men can agree as to the proper course to be followed to prevent injury." ( See Donohue v. Copiague Union Free School District, 64 AD2d 29, 33 [2nd Dept 1978], aff'd 47 NY2d 440.) For purposes of our case, it is sufficient to note that "locks for the entrances" is considered "the most rudimentary security." ( See Jacqueline S. by Ludovina S. v. City of New York, 81 NY2d 288, 295; see also Miller v. State of New York, 62 NY2d 506, 514 ["rather minimal security measure of keeping the . . . doors locked"]; Fichera v. 25-26 East Owners Corp., 277 AD2d 157, 157 [1st Dept 2000]; Novikova v. Greenbriar Owners Corp., 258 AD2d at 154.)
In addition to duty and its breach, Plaintiffs must establish that the owners' breach of duty was a legal cause of their loss by producing evidence that "renders it more likely or reasonable than not that the [burglar] was an intruder who gained access to the premises through a negligently maintained entrance." ( See Burgos v. Aqueduct Realty Corp., 92 NY2d at 551.)
"Since even a fully secured entrance would not keep out another tenant, or someone allowed into the building by another tenant, the burden of proof on the plaintiff at trial is to offer evidence that it is more likely or more reasonable than not, where the identity of the criminal actor is unknown, that the injury was perpetrated by an intruder who gained access to the premises through a negligently maintained entrance." ( Sakhai v. 411 East 57th Street Corp., 272 AD2d at 232-33.)
Here again, although duty and causation are treated separately analytically, "[a] landlord is under no duty to safeguard a tenant against an attack by another tenant or his invitee if the landlord did not have the authority to control the assailant." ( See Sobers v. Roth Brothers Partnership Co., 284 AD2d 324, 324 [2nd Dept 2001].)
In our case, Plaintiffs allege violation of Multiple Dwelling Law § 50-a, concerning "[e]ntrances: doors, locks and intercommunication systems." And it may be that, had such violation been shown, it may have established both duty and its breach. ( See Ragona v. Hamilton Hall Realty, 251 AD2d 391, 392 [2nd Dept 1998].) Plaintiffs introduced no evidence, however, that the building at 247 North 8th Street "was erected or converted" after January 1, 1968 ( see MDL § 50-a [1], [2]), or that a tenant referendum was held in accordance with the statute ( see MDL § 50-a[3]).
Even if, however, a violation of the statute had been shown, Plaintiffs would still be required to establish sufficient causal connection between that violation, constituting breach of duty, and their damages. ( See Raylite Elec. Corp. v. City of New York, 30 AD2d 38, 40 [1st Dept 1968], aff'd 24 NY2d 785; Eifer v. Shmuelovitch, 262 AD2d 523, 523 [2nd Dept 1999]; New York Central Mutual Fire Ins. Co. v. City of Albany, 247 AD2d 815, 817 [3rd Dept 1998].)
With respect to the first burglary, Plaintiffs did not establish that the burglary was reasonably foreseeable. Ignoring, as it must, "mere hearsay statements regarding previous [attempted and executed burglaries] on the premises" ( see Alonso v. Branchinelli, 277 AD2d 408, 409 [2nd Dept 2000]), which Defendants properly objected to at trial, the Court finds no evidence to support a finding of duty. The clear tenor of applicable caselaw is that, even in the urban environment, a landlord has no a priori duty to provide locked entrance doors to a residential building. Marguerite Phillips testified that, prior to the first burglary, she knew of no burglaries in the building or on the block, and that she "felt safe and secure."
With respect to the second burglary, the question is whether a single "prior occurrence of the same . . . criminal activity at . . . the subject location" ( see Novikova v. Greenbriar Owners Corp., 258 AD2d at 153) is sufficient to make a second burglary, approximately six months later, "reasonably predictable". This Court concludes that it does. Given the proximately in time ( compare Roberts v. Jam Realty Co., 260 AD2d 230, 230-31 [1st Dept 1999]); the size of the building; the rudimentary, minimal, and relatively inexpensive security provided by a locked entrance door; and the legislative findings and policies reflected in Multiple Dwelling Law § 50-a; the Court finds and concludes that, after the first burglary, the owners should have ensured that the vestibule door locked. Their failure to do so was negligent.
Plaintiffs' more serious problem is establishing that it is "more likely or reasonable than not" that the second burglary was committed by an "intruder". ( See Burgos v. Aqueduct Realty Corp., 92 NY2d at 555.) "[B]urglaries do not . . . necessarily implicate . . . a criminal intruder, as these crimes might have been committed by a fellow tenant, a guest, or a service provider." ( Novikova v. Greenbriar Owners Corp., 258 AD2d at 153.)
It is true nonetheless that, in this context, burglaries are fundamentally different from crimes against the person because, for the latter, there is at least one witness, the victim. The testimony of such a victim that the assailant was not recognized as a tenant or other frequenter of the premises has been significant to a plaintiff's ability to establish the requisite causal link. ( See Burgos v. Aqueduct Realty Corp., 92 NY2d at 551-52; Sanchez v. New York City Housing Authority, 256 AD2d 485, 486-87 [2nd Dept 1998]; Cisse v. S.F.J. Realty Corp., 256 AD2d 257, 258 [1st Dept 1998].) In order that a plaintiff "not [be] automatically foreclos[ed] . . . from recovery in the many cases where the [perpetrator] cannot be identified" ( see Burgos v. Aqueduct Realty Corp., 92 NY2d at 551), courts assessing evidence of causation need account for the difference between types of criminal activity, as they do when they assess the forseeability of future criminal conduct by reference to the past ( see Durham v. Beaufort, 300 AD2d 435, 436 [2nd Dept 2002]; Novikova v. Greenbriar Owners Corp., 258 AD2d at 153.)
In our case, however, even with that sensitivity to context, Plaintiffs come up short. The fact of forced entry through their apartment door, which might provide inferential value in other situations ( see Zion Tsabbar, D.D.S., P.C. v. Hirsch, 266 AD2d 91, 91 [1st Dept 1999]), is of no value here, because even someone with a key to the vestibule door would be required to force entry into the apartment. And, not surprisingly, Plaintiffs presented no expert testimony as to the relationship between the unlocked entrance door and "crimes of opportunity." ( See Price v. New York City Housing Authority, 92 NY2d 553, 559.)
Some inferential value, perhaps enough for a prima facie showing, would be gained by a showing that five of the other seven apartments in the building had been subject to burglary or attempted burglary in the three years prior to Plaintiffs' burglaries. But, again, there was no admissible evidence of any prior burglaries or attempted burglaries, and no testimony at all as to their circumstances so as to allow and assess any inference.
Plaintiffs fare no better to the extent that their claims are based upon the warranty of habitability. Although "a landlord's failure to adequately protect its tenants' security breaches the warranty of habitability" ( 610 W. 142nd St. Owners Corp. v. Braxton, 137 Misc 2d 567, 568 [Civ Ct, NY County 1987], mod. on other grounds 140 Misc 2d 826, 827 [App Term, 1st Dept 1988]), the warranty permits the tenant to recover "only limited economic loss" ( see Richardson v. Simone, 275 AD2d 576, 577 [3rd Dept 2000]), and does not provide a basis for recovery for personal injury or property damage ( see id.; see also Doe v. Westfall Health Care Center, Inc., 303 AD2d 102, 113 [4th Dept 2002]; Barragan v. Mathai, 253 AD2d 508, 509 [2nd Dept 1999]).
That leaves Marguerite Phillips's claim with respect to the $2,400.00 check. Mr. Czajka as drawer of the check is liable on it after the drawee bank's dishonor, subject to any defense to payment that he might prove. ( See UCC § 3-307, [2] and § 3-413[2]; Hibernia National Bank v. Lacombe, 84 NY 367, 379-80.) Although there was no evidence of any defense to payment ( see UCC § 3-306), the Court notes that Ms. Phillips provided consideration for the check when she and her sister vacated the apartment in accordance with their agreement with the owners.
Although only Mr. Czajka signed the check, the Court also finds and concludes based upon the uncontradicted testimony of Plaintiffs that both owners agreed to pay Ms. Phillips $2,400.00, representing her security deposit and initial agent's fee, upon her vacating the apartment by October 31, 2004, and that Ms. Phillips performed her part of the bargain. Her damages for Defendants' breach include the "returned item handling" fee of $25.00.
Finally, "punitive damages are not available in contract actions, except under unusual circumstances not present here." ( Coplon v. Foster Apartments Group, 253 AD2d 732, 732 [2nd Dept 1998]; see also Rocanova v. Equitable Life Assurance Society of the United States, 83 NY2d 603, 613; TVT Records v. Island Def Jam Music Group, 412 F3d 82, 93-94 [2d Cir 2005].)
Judgment is awarded to plaintiff Marguerite Phillips against Defendants for $2,425.00, with interest from October 31, 2004, plus costs. The Endorsed Complaint is otherwise dismissed.