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Defendants Move for Summary Judgment

This involves a case where the Supreme Court Appellate division held that conceivability is not equivalent to foreseebility. The Court herein granted defendant’s motion for summary judgment dismissing the complaint.

A New York Criminal Lawyer said the plaintiff was a tenant in a building located at 584 Academy Street in Manhattan, owned by defendant holding company and managed by defendant development company. In the early afternoon of February 26, 2002, plaintiff entered the building through the lone entrance available to the tenants. A man whom plaintiff did not recognize entered the building immediately after her. The man walked ahead of plaintiff up a staircase, which plaintiff was using to reach her unit on the second floor. As plaintiff opened the door to her apartment, the man, who had continued up the staircase when plaintiff walked from the staircase to her unit, ran down the staircase and pushed plaintiff into the apartment. The man then sexually assaulted plaintiff at gunpoint.

Plaintiff commenced this action to recover damages for personal injuries, claiming that defendants failed to provide adequate security for the building. Specifically, a New York Criminal Lawyer said the plaintiff’s theory of liability is that defendants failed to maintain a working lock on the door to the tenants’ entrance, which failure allowed the assailant to gain entry to the building and assault plaintiff.

Defendants jointly moved for summary judgment dismissing the complaint on the ground that the assault was not foreseeable, arguing that, although there was drug activity in the surrounding neighborhood, there was no history of criminal activity in the building. In opposition, plaintiff submitted evidence demonstrating that, in the 4½ years prior to the assault, several incidents occurred in or near the building to which the police responded. Plaintiff also submitted the affidavit of an expert in the field of premises security who averred, among other things, that the building was in a high crime area and that the assault on plaintiff was foreseeable.

Building owners and managing agents have a common-law duty to take minimal security precautions to protect tenants from the foreseeable criminal acts of third parties A New York Drug Possession Lawyer stated the court stated “[T]here is no requirement `that the past experience relied on to establish foreseeability be of criminal activity at the exact location where plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected’, or that `the operative proof must be limited to crimes actually occurring in the specific building where the attack took place’ (Jacqueline S. v City of New York, supra, at 294). However, this does not mean that the criminal activity relied upon by the plaintiffs to support their claim of foreseeability need not be relevant to predicting the crime in question…. Rather, to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location”

Defendants met their initial burden of establishing their entitlement to judgment as a matter of law by making a prima facie showing that the sexual assault committed against plaintiff was not reasonably predictable. In support of their motion, defendants submitted the deposition testimony of three witnesses— plaintiff, an employee of the managing agent and the superintendent of the building. A New York Sex Crimes Lawyer said the deposition testimony of these witnesses established nothing more than that, in the words of the employee of the managing agent, there was “a lot of drug and drug crime activity” in the neighborhood. Moreover, with respect to the building itself, each witness testified that he or she was not aware of any criminal activity in the building prior to the assault committed against plaintiff.

Plaintiff’s evidence was insufficient to raise a triable issue of fact with respect to whether the sexual assault was foreseeable, i.e., reasonably predictable.

The sexual assault committed against plaintiff was not reasonably predictable based on the prior criminal activity in or near the building

Without trivializing the criminal activity in and around plaintiff’s building, it must be acknowledged that, with the exception of the shooting that took place on a street somewhere in the vicinity nearly three years earlier, the criminal activity plaintiff relies upon consists of low-level crimes.

To hold defendant liable for plaintiff’s injury would be to stretch the concept of foreseeability beyond acceptable limits [and make defendant an insurer of plaintiff’s safety]” (Williams, 247 AD2d at 52 [internal quotation marks, brackets and citation omitted]). The same holds true here. That a woman entering her apartment in New York City might be subject to a sexual assault is conceivable, but conceivability is not the equivalent of foreseeability.

Our New York Criminal Lawyers from Stephen Bilkis and Associates can fully afford you protection against unfair and unnecessary claims. It has offices conveniently situated within New York Metropolitan area, including Corona, New York.

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