Smith v New York City Hous. Auth.

Smith v New York City Hous. Auth. 2015 NY Slip Op 05776 Decided on July 2, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 2, 2015
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.
15579 6417/05

[*1] Mary Smith, etc., Plaintiff-Respondent,

v

New York City Housing Authority, et al., Defendants-Appellants, I.B. Security Conscious, Inc., Defendant.

Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellants.

Lynn Gartner Dunne & Covello, LLP, Mineola (Joseph Covello of counsel), for respondent.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 3, 2014, which denied the motion of defendants New York City Housing Authority and Grenadier Realty Corp. for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this wrongful death action alleging negligent premises security, defendants met their prima facie burden by pointing to undisputed evidence that the assailant remains unknown, and it remains unknown whether he or she was an intruder, as opposed to another tenant or guest lawfully on the premises (see New v New York State Urban Dev. Corp., 110 AD3d 531 [1st Dept 2013]). Thus, the burden shifted to plaintiff to "present evidence from which intruder status may reasonably be inferred" (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 551 [1998]), and in opposition, plaintiff failed to present such evidence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 2, 2015

CLERK