ELEBY v. NEW YORK CITY HOUSING AUTHORITY, N.Y. App. Div., Judgment, Law, casemine.com

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Robert J. Miller

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Smart Summary

Factual and Procedural Background

The plaintiff was assaulted and raped by her former boyfriend in the stairwell outside her apartment in a public housing project. She sued the defendant landlord/owner alleging that, despite knowledge of prior criminal activity in and around the building, the defendant failed to properly maintain the front door lock to the apartment building. After issue was joined, the defendant moved for summary judgment. The trial court denied that motion, finding triable issues of fact. On appeal, the Appellate Division reversed, granted the defendant's motion for summary judgment, and dismissed the complaint.

Legal Issues Presented

Whether triable issues of fact existed to defeat the defendant's motion for summary judgment in a landlord-liability claim based on alleged failure to maintain a building lock.
Whether the plaintiff met her evidentiary burden, in opposition to summary judgment, by proffering sworn, nonhearsay evidence that the lock was inoperable at the time of the attack and that the defendant knew or should have known of the condition for a sufficient time to have repaired it.

Arguments of the Parties

Plaintiff's Arguments

The landlord knew of prior criminal activity in and around the building and failed to properly maintain the building's front door lock, which contributed to the assault.

Defendant's Position

The defendant moved for summary judgment seeking dismissal of the complaint; the Appellate Division concluded the plaintiff failed to proffer required evidentiary proof to defeat that motion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507	Supports the proposition that a landowner is not the insurer of tenants and for landlord liability principles cited elsewhere.	Used to state that a landowner is not an insurer and as authority for the standard governing landlord duties to tenants in the face of foreseeable criminal acts.
Basso v Miller, 40 N.Y.2d 233, 241	Articulates the reasonable-person duty: a landowner must act as a reasonable person in maintaining property in a reasonably safe condition considering likelihood and seriousness of injury and burden of avoidance.	Quoted as the standard by which governmental entities/landowners must maintain property safety, framing the duty analysis in this case.
Jacqueline S. v City of New York, 81 N.Y.2d 288	Referenced as supporting authority for the landlord/municipal duty standard regarding maintenance and foreseeability of criminal intrusion.	Cited as additional authority supporting the duty to maintain security measures when criminal intrusion is foreseeable.
Miller v State of New York, 62 N.Y.2d 506	Holds that a landlord has a duty to maintain minimal security measures related to a specific building in the face of foreseeable criminal intrusion.	Relied upon to state the specific duty to maintain minimal security measures and to ground the evidentiary requirement for causation in this context.
Tartar v Schildkraut, 151 A.D.2d 414	Listed as supporting authority for landlord liability principles in the face of criminal activity.	Included among cases that illustrate the duty to provide minimal security measures for tenants.
Loeser v Nathan Hale Gardens, 73 A.D.2d 187	Used as precedent concerning landlord responsibility and evidentiary burdens in similar contexts.	Cited for the principle that a plaintiff must provide competent evidence regarding the defect and notice to the landlord to defeat summary judgment.
Sherman v Concourse Realty Corp., 47 A.D.2d 134	Referenced for related landlord-liability and evidentiary principles.	Referenced alongside Loeser as authority for the evidentiary showing required to establish causation and landlord notice.
Beatty v National Assn. for Advancement of Colored People, 194 A.D.2d 361	Provides guidance that a plaintiff must proffer sworn, nonhearsay allegations of evidentiary fact or other competent evidence in opposition to summary judgment.	Applied to hold that the plaintiff needed sworn, nonhearsay evidence that the lock was inoperable and that the defendant had notice for a sufficient period; no such evidence was offered.

Court's Reasoning and Analysis

The court began from the principle that a landowner is not an insurer of tenants and then articulated the duty standard that a landowner/government entity must act as a reasonable person to maintain property in a reasonably safe condition, considering foreseeability and the burden of prevention (Basso and related cases). The court noted Miller's articulation that a landlord must maintain minimal security measures when criminal intrusion upon tenants is foreseeable. The court then explained the plaintiff's evidentiary burden in opposing summary judgment: she was required to proffer sworn, nonhearsay allegations of evidentiary fact or other competent evidence that (1) the lock was inoperable at the time of the attack and (2) the defendant knew or should have known of the inoperability for a period sufficient to have repaired it (citing Beatty, Loeser, Sherman). Finding that the plaintiff proffered no such evidence, the court concluded that, even assuming the attack was foreseeable, the defendant's motion for summary judgment should have been granted.

Holding and Implications

DISPOSITION: The order of the Supreme Court, Kings County, is reversed, on the law, with costs; the defendant's motion for summary judgment is granted, and the complaint is dismissed.

Implications: The direct effect is dismissal of the plaintiff's complaint and entry of summary judgment for the defendant. The opinion applies existing precedent regarding landlord duties and evidentiary burdens to summary judgment opposition; it does not announce a new legal rule beyond those authorities.

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BARBARA ELEBY, Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Appellant.

Ordered that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, and the complaint is dismissed.

The plaintiff was assaulted and raped by her former boyfriend in the stairwell outside of her apartment in a public housing project. She commenced this action against the defendant as landlord and owner of the premises, alleging that despite its knowledge of prior criminal activity in and around the building, the defendant failed to properly maintain the lock on the front door to the apartment building. After issue was joined, the defendant moved for summary judgment. The court denied the motion, finding the existence of triable issues of fact. We now reverse and dismiss the complaint.

A landowner is not the insurer of his tenants ( see, Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507). However, a government entity, as "`a landowner must act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injuries to others, the seriousness of the injury, and the burden of avoiding the risk'" ( Basso v Miller, 40 N.Y.2d 233, 241; see also, Jacqueline S. v City of New York, 81 N.Y.2d 288; Miller v State of New York, 62 N.Y.2d 506; Nallan v Helmsley-Spear, Inc., supra). "Under this standard, a landlord has a duty to maintain minimal security measures, related to a specific building itself, in the face of foreseeable criminal intrusion upon [its] tenants" ( Miller v State of New York, supra, at 513, citing Nallan v Helmsley-Spear, Inc., supra; see also, Jacqueline S. v City of New York, supra; Tartar v Schildkraut, 151 A.D.2d 414; Loeser v Nathan Hale Gardens, 73 A.D.2d 187; Sherman v Concourse Realty Corp., 47 A.D.2d 134). Here, in order to sustain her evidentiary burden as to causation, it was incumbent upon the plaintiff, in response to the defendant's motion for summary judgment, to have proffered sworn, nonhearsay allegations of evidentiary fact or other competent evidence that the lock at issue was inoperable at the time of the attack and that the defendant knew or should have known of such a fact for a period of time sufficient to have repaired it ( see, Beatty v National Assn. for Advancement of Colored People, 194 A.D.2d 361; see also, Loeser v Nathan Hale Gardens, supra; Sherman v Concourse Realty Corp., supra). However, no such evidence was proffered. Accordingly, even if we assume that the attack was foreseeable, the defendant's motion for summary judgment should have been granted and the complaint dismissed. Miller, J.P., O'Brien, Ritter and Goldstein, JJ., concur.

ELEBY v. NEW YORK CITY HOUSING AUTHORITY