Gonzalez v. Riverbay Corp.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about October 5, 2015, which, to the extent appealed from, granted defendants Riverbay Corporation and Marion Scott Real Estate, Inc.’s motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion denied.

On August 10, 2009, plaintiff was sexually assaulted in the

Given the existence of an issue of fact as to foreseeability, an issue of fact also exists whether defendants discharged their common-law duty to take minimal precautions to protect the tenants from the foreseeable harm (see id,.; Miller v State of New York, 62 NY2d 506 , 513 [1984]; Nallan v Helmsley-Spear, Inc., 50 NY2d 507 , 519-520 [1980]). In particular, in view of the previous incidents, issues of fact exist whether the security measures in place adequately protected female tenants from the risks posed and whether reasonable measures should have included, among others, warnings to tenants about the perpetrator, advising security staff of the perpetrator’s prior arrest in the complex, providing security staff and tenants with the perpetrator’s photograph, real-time monitoring of surveillance videos, or increasing the presence of lobby attendants, who were absent on the day of the assault. In other words, under the unique circumstances of this case, an issue is raised as to whether defendants, who had notice of this repeat intruder, took minimal security steps with respect to preventing his ability to easily access the interior of their buildings and attempt to sexually assault female tenants (see Nallan, 50 NY2d at 520 n 8; Garrett v Twin Parks Northeast Site 2 Houses, 256 AD2d 224 , 226 [1st Dept 1998, Rubin, J., concurring]).

Finally, an issue of fact exists whether any negligence on defendants’ part was a proximate cause of the assault (see Burgos v Aqueduct Realty Corp., 92 NY2d 544 [1998]). The record shows that the perpetrator was able to gain entry into plaintiff’s building not as a guest but as an intruder; given defendants’ awareness of the practice of “piggy backing” in general and “piggy backing” by this perpetrator specifically, the tenant’s act of permitting the perpetrator to enter the building by “piggy backing” does not, as a matter of law, amount to a superseding intervening act that breaks the chain of causation between any deficient security and the assault on plaintiff (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 , 315 [1980]).

Concur—Tom, J.P., Mazzarelli, Andrias, Manzanet-Daniels and Webber, JJ.