Ynoa v Bauer

[*1] Ynoa v Bauer 2007 NY Slip Op 50812(U) [15 Misc 3d 136(A)] Decided on April 18, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 18, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ
570541/06.

Elena Ynoa, as parent and guardian for Yoselin Ynoa, Elena Ynoa, individually and Anna Vargas, Plaintiffs-Respondents,

against

Irving Bauer, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered June 27, 2006, which denied his motion for summary judgment dismissing the complaint.

PER CURIAM:
Order (Fernando Tapia, J.), entered June 27, 2006, affirmed, with $10 costs.

Plaintiffs commenced this action to recover damages for personal injuries sustained when they were attacked by two strangers who entered their apartment. Deposition testimony established that at the time of the attack, the exterior door to the building had a "hole" where the lock would be found, and that the lock had been missing for at least three months prior to the incident. Defendant moved for summary judgment, claiming that plaintiffs could only speculate as to how the perpetrators, whether tenants or intruders, gained access to the building.

Defendant's motion for summary judgment was properly denied. Plaintiffs proffered sufficient evidence from which a fact finder could reasonably infer that their assailants were intruders who gained entrance to the building through the broken front door (see Calderin v Lyra Assocs., LLC., 281 AD2d 248 [2001]). Plaintiffs need not conclusively establish that the assailants were intruders. They have demonstrated that an issue of fact exists as to whether it was "more likely or more reasonable than not that the assailant[s] [were] intruder[s] who gained access to the premises through a negligently maintained entrance" (Bennett v. Twin Parks Northeast Houses Inc., 93 NY2d 860 [1999]); see also Burgos v. Aqueduct Realty Corp., 92 NY2d 544 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 18, 2007