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PLAINTIFF’S ACTION ALLEGING INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE OF AN ASSAULT ON PLAINTIFF IN THE BUILDING LOBBY SHOULD NOT HAVE BEEN DISMISSED; THERE WAS EVIDENCE OF PRIOR CRIMINAL ACTIVITY RAISING A QUESTION OF FACT WHETHER THE ASSAULT WAS FORESEEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff security guard’s third-party assault action stemming from an assault by young persons who entered the lobby where plaintiff was working through an unlocked door should not have been dismissed. There was evidence the assault was foreseeable:

… [T]he defendants did not demonstrate their prima facie entitlement to judgment as a matter of law on the ground that they provided reasonable minimal security precautions at the building, given the evidence of prior incidents of criminal activity. The submissions on the defendants’ motion included, inter alia, transcripts of the deposition testimony of their property manager and the plaintiff, as well as evidence of a report indicating that several days prior to the subject incident, a group of “skateboarders” entered the lobby during the evening and refused to leave. The record also contained evidence of other prior crimes in the building, including an incident approximately seven months earlier, when an individual became belligerent and damaged a front door in the lobby. Against this backdrop of prior criminal activity, the defendants’ submissions failed to eliminate all triable issues of fact as to whether they provided reasonable minimal security precautions at the building under the circumstances … . In this regard, the defendants failed to demonstrate that the actions of the assailants were so unforeseeable as to sever any causal nexus between the defendants’ alleged negligence and the plaintiff’s injuries. Vilsaint v SL Green Realty Corp., 2021 NY Slip Op 03481, Second Dept 6-2-21

 

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