PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT’S BUILDING, DID NOT RAISE A QUESTION OF FACT ON WHETHER THE ASSAILANT WAS AN INTRUDER OR A TENANT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, over a two-justice dissent, reversing Supreme Court, determined that the NYC Housing Authority’s (NYCHA’s) motion for summary judgment in this third party assault case should have been granted. Plaintiff, who was assaulted in defendant’s building, did not raise a question of fact on whether the assailant was an intruder or a tenant. The defendant would only be liable if, due to negligence, an intruder entered the building and committed the assault:

NYCHA met its prima facie burden by demonstrating that plaintiff failed to raise an issue of fact as to whether the assailant was an intruder, as opposed to a tenant or invitee lawfully on the premises … . In support of its motion, NYCHA submitted plaintiff’s deposition testimony that she was not a resident and did not know any other tenants in the building aside from her two patients. Plaintiff also testified that she did not see her assailant’s face because he kept his face covered with the hood of his sweatshirt and that she did not know if her assailant was a tenant or guest.

We previously have held that the victim’s familiarity with building residents, a history of ongoing criminal activity, and the assailant’s failure to conceal his or her identity tend to demonstrate that the assailant was more likely than not an intruder … . Here, plaintiff’s testimony demonstrates that these important factors were not present. Thus, plaintiff “provided no evidence from which a jury could conclude, without pure speculation, that it was more likely than not that the assailant was an intruder” … . Laniox v City of New York, 2019 NY Slip Op 02026, First Dept 3-19-19