Opinion
Decided February 16, 1999
Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered June 4, 1998, which affirmed an order of the Supreme Court (Kenneth L. Thompson, Jr., J.), entered in Bronx county, granting a motion by defend- ant for summary judgment dismissing the complaint.
Plaintiff commenced an action to recover for personal injuries he suffered when he was assaulted in the elecator of his apartment building. Plaintiff alleged that the front door lock was broken for approximately a year and a half; that the lobby of his building was empty when he entered the building on the night of the assault; that his assailants came into the lobby from outside the building; that he knew almost everybody in the building by face; that he did not recognize his assailants as tenants of the building; that he has not seen his assailants since; that the door locks were frequently vandalized; that defendant was negligent in maintaining the front door lock; and that negligence permitted his assailants, who were never apprehended or otherwise identified, to gain enterance to the building and attack him.
Supreme Court granted defendant summary judgment on the ground that plantiff was unable to establish that the person who robbed him were not either tenants or invitees.
The Appellate Division concluded that in the absence of evidence of a provable claim that the assailants were intruders who could not have gained access to the premises but for defendant's negligent maintenance of the front door lock, the grant of defendant's motion for summary judgment was proper.
Torres v New York City Hous. Auth., 251 AD2d 54, reversed.
Submitted by Anthony Ferrandino, for appellant.
Submitted by Herbert Rubin, for respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, and defendant's motion for summary judgment denied.
Although plaintiff's assailants in this premises security case remain unidentified, plaintiff has raised a triable issue of fact as to whether it was "more likely or more reasonable than not" that the assailants were intruders "who gained access to the premises through a negligently maintained entrance" (Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 548).
On review of submissions pursuant to section 500.4 of the Rules, order reversed, with costs, and defendant's motion for summary judgment denied, in a memorandum.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.