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DEFENDANT PROPERTY OWNER DEMONSTRATED THERE HAD BEEN NO CRIMINAL ACTIVITY ON THE PROPERTY IN THE PAST AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER THE FAILURE TO SECURE THE ALLEYWAY WAS A PROXIMATE CAUSE OF THE THIRD-PARTY ASSAULT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner’s motion for summary judgment in this third-party assault case should have been granted. The defendant demonstrated there had been no prior criminal activity on the property and did not raise a question of fact whether the failure to secure the alleyway was a proximate cause of the attack:

… [T]he infant plaintiff testified that while he was in the building’s vestibule, he was accosted by an unknown assailant and assaulted in the alleyway on the side of the building. The infant plaintiff, by his father and natural guardian, and his father suing derivatively, commenced this action against the defendant, alleging that the defendant failed to secure the alleyway.

To recover damages from an owner of real property for injuries caused by criminal acts on the premises, a plaintiff must produce evidence indicating that the owner knew or should have known of the probability of conduct on the part of third persons which was likely to endanger the safety of those lawfully on the premises … . Here, the defendant established, prima facie, its entitlement to summary judgment by showing that it had no notice of prior criminal activity so as to make the instant occurrence foreseeable. The plaintiffs submitted no evidence in response, and thus failed to raise a triable issue of fact … . Moreover, in opposition to the defendant’s prima facie showing with respect to causation, the plaintiffs failed to raise a triable issue of fact as to whether the defendant’s alleged failure to secure the alleyway was a proximate cause of the occurrence … . Calle v Elmhurst Woodside, LLC, 2020 NY Slip Op 08033, Second Dept 12-30-20

 

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