Weitz v. State of NY

FRANCIS T. COLLINS, J. This is a claim to recover for personal injuries allegedly sustained when claimant was physically attacked while a student at the State University of New York at Albany (SUNYA). During the spring semester of 1995, claimant resided in a 9th floor suite located in Eastman Tower on the State Quad at SUNYA. Each quad consists of a tower surrounded by low-rise buildings. There are 21 floors in each tower with three suites on each floor. Ordinarily, five students reside in a suite. There is a single entrance to Eastman Tower comprised of four exterior doors and four interior doors. All of the doors have crash bars which permit them to be opened from the inside. SUNYA policy at the time of this incident was to lock the inner doors at 9:00 P.M. each evening as a security measure. Every student residing at State Quad was issued a key which provided 24-hour access to Eastman Tower. Security for the dormitories at SUNYA was a joint responsibility of the University Police Department and the dormitory supervisors and residence assistants. The University Police Department divided the campus into zones, with each zone consisting of two quads. State Quad and Colonial Quad made up Zone 3. The University Police Department patrolled the campus in three shifts with the night shift for Zone 3 ordinarily consisting of a Campus Public Safety Officer II and two Security Services Assistants. The Public Safety Manual of Rules for SUNYA, received into evidence as exhibit 27, provides in article 20.8 that the law enforcement tasks of a public safety officer are, among others, mobile and foot patrols of the campus, securing the buildings at closing and assisting the residence staff in maintaining security and order in the dormitories. Article 20.9 of exhibit 27 describes the duties of a Security Services Assistant in the following manner: "Security Services Assistants I (SSA's) function primarily in a building guard/watchman capacity. They work under the in the record that the doors to Eastman Tower were propped open in the early morning hours of May 17, 1995. For that matter, Sigma members Smith, Scanlon, Sabatino and their friend, Jeff Crane, did not need a defective lock or an improperly opened entrance door to gain access to Eastman Tower as the evidence establishes that Scanlon, as a resident of State Quad, had a key to Eastman Tower. At the disciplinary hearing, claimant specifically asked Smith and Scanlon how they gained entry to the building and they replied that someone had let them in. The minutes of the disciplinary proceeding were offered into evidence by claimant and there was no objection to any hearsay matter contained therein. Claimant now attempts, through his posttrial memorandum of law, to object to the statement as to how Scanlon and Smith gained entry as hearsay. That objection is not availing since "hearsay admitted without objection may be considered in a civil action" (Brooklyn Union Gas Co. v Arrao, 100 AD2d 949, 950), and may be used to prove the facts in controversy (Ford v Snook, 205 App Div 194, 199, affd 240 NY 624). Based upon the testimony and exhibits received at trial, the court finds that the claimant has failed to establish by a preponderance of the evidence that his injuries were caused by the acts of an intruder who gained access to the Eastman Tower as the result of negligence on the part of SUNYA employees in creating or allowing an unsecured entranceway to exist in the early morning hours of May 17, 1995. In summary, the court is granting the defendant's motion to dismiss the second cause of action and that portion of the first cause of action premised upon an alleged breach of police protection for failure to state a cause of action and pursuant to the pleaded defense of immunity. With respect to that portion of the first cause of action premised upon the defendant's alleged negligence in its proprietary role as a landlord, the court finds that claimant has not established by a preponderance of the evidence that his assailant was an intruder who gained access through the negligence of SUNYA employees. The claim must be dismissed. [*] All quotations are from the court's trial notes.