Opinion
2012-06-7
Milton RODRIGUEZ, Plaintiff–Respondent, v. CAMAWAY REALTY, INC., Defendant–Appellant, Amado Marin, et al., Defendants.
Friedman, Levy, Goldfarb & Green, P.C., New York (Charles E. Green of counsel), for appellant. Gropper Law Group, PLLC, New York (Joshua Gropper of counsel), for respondent.
Friedman, Levy, Goldfarb & Green, P.C., New York (Charles E. Green of counsel), for appellant. Gropper Law Group, PLLC, New York (Joshua Gropper of counsel), for respondent.
TOM, J.P., ANDRIAS, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered September 28, 2011, which denied defendant Camaway Realty, Inc.'s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant established its entitlement to summary judgment, by tendering evidence that there was no prior criminal activity at its premises likely to endanger the safety of plaintiff ( see Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293–294, 598 N.Y.S.2d 160, 614 N.E.2d 723 [1993];Jean v. Wright, 82 A.D.3d 1163, 919 N.Y.S.2d 377 [2011],lv. denied17 N.Y.3d 704, 2011 WL 2535046 [2011];M.D. v. Pasadena Realty Co., 300 A.D.2d 235, 237, 753 N.Y.S.2d 457 [2002] ). Both the owner and plaintiff testified that they knew of no such activity.
In opposition, plaintiff failed to come forward with sufficient evidence of prior criminal activity on the premises. The identical affidavits plaintiff presented of other tenants failed to raise a triable issue of fact, since the affidavits lacked the necessary specificity to support his negligence claim.
Although the affidavits reported one prior assault at the premises, the alleged victim of that assault, the superintendent of the building, came forward with an affidavit stating that he was struck by a boyfriend of a tenant's daughter, not an intruder. Such an attack is insufficient to establish the necessary notice of prior criminal activity ( see Simms v. St. Nicholas Ave. Hotel Co., 187 A.D.2d 373, 589 N.Y.S.2d 485 [1992],lv. denied81 N.Y.2d 704, 595 N.Y.S.2d 399, 611 N.E.2d 300 [1993] ). Thus, the attack on plaintiff was unforeseeable as a matter of law ( see Ortiz v. Wiis Realty Corp., 66 A.D.3d 429, 429–30, 887 N.Y.S.2d 10 [2009];Maria S. v. Willow Enters., 234 A.D.2d 177, 651 N.Y.S.2d 486 [1996] ).
In light of our determination of nonforeseeability, we need not reach the remaining issues raised by the parties.