Caroline A. v New York City Hous. Auth.

[*1] Caroline A. v New York City Hous. Auth. 2009 NY Slip Op 51111(U) [23 Misc 3d 1135(A)] Decided on April 13, 2009 Supreme Court, Bronx County Salerno, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2009
Supreme Court, Bronx County

Caroline A., an infant over the age of 14 years by her mother and natural guardian MARIANELA A., Plaintiffs,

against

New York City Housing Authority, GILSTON ELECTRICAL CONTRACTING CORPORATION AND VERIZON NEW YORK, INC., Defendants.



29401/2002



Plaintiff's Attorney:

Sullivan Papain Block McGrath & Cannavo P.C.

120 Broadway

New York, New York 10271

(212) 732-9000

Attorneys for Defendant

Gilston Electrical Corporate Tower

Murphy & Higgins

1 Radisson Plaza, 9th Floor

New Rochelle, New York 10801

(914) 712-1100

Attorneys for Defendants

Verizon New York, Inc.

Conway Farrell Curtin & Keppy

48 Wall Street

New York, New York 10005

(212) 785-2929

Attorneys for Defendant City

New York City Housing Authority Wilson, Elser, Moskowitz, Edelman & Dicker LLP

150 East 42nd Street

New York, New York 10017

(212) 490-3000

George D. Salerno, J.

Background

This action is brought by plaintiff's mother, Marianela A., to recover damages for personal injuries allegedly sustained by her daughter, Caroline A., who was sexually assaulted by the third-party defendant Leroy Williams on January 24, 2001.[FN1] At that time, Caroline A. was 13 years old and resided with her parents in Building 14 located at 695 East 163rd Street in the Bronx (also described as Forest Houses) and maintained by defendant New York City Housing Authority (Housing Authority).[FN2] It is undisputed that, when Caroline A., was sexually assaulted, she did not possess a key to open the front entrance door of her building.[FN3] One of the factual issues presented, as plaintiffs contend, is whether the intercom system installed by defendant Gilston Electrical Contracting Corporation (Gilston) was not working when Caroline A. was assaulted.[FN4]

The events leading to the criminal assault committed by Williams began when Caroline A. returned to her home on January 24, 2001 after spending several hours at a public library.[FN5] Adjacent to Building 14's front entrance door was an intercom buzzer telephone system installed by Gilston, a company retained by the Housing Authority to install such systems in plaintiffs' building and other buildings maintained by the Housing Authority.[FN6] This intercom buzzer [*2]telephone system was installed outside the building's entrance door where plaintiffs resided and connected to telephone lines installed in each tenant's apartment by defendant Verizon New York, Inc. (Verizon). [FN7] When Caroline A. returned from the library on January 24, 2001, she was unable to notify her mother that she was outside the front entrance door because the intercom phone connection to her apartment was not working, and she did not posses a key to open the lock on the front door.[FN8]

Caroline A., consequently, waited until a tenant whom she knew arrived to enter the building. After waiting several minutes, Caroline A. noticed that "a guy came" whom she did not know or recognize and who also attempted to enter her building. Both Caroline A. and this unknown male, who later was identified as Williams, waited to enter the building. [FN9]

A few minutes after Williams' arrival, a tenant who Caroline A. recognized, opened the front door with a key which the tenant possessed. Caroline A. along with Williams and the tenant, who opened the door, all entered the building and walked to the elevators. All three individuals then entered the elevator. [FN10] After the unidentified tenant exited the elevator, Williams took out a gun and forced Caroline A. to leave the elevator before it reached the top floor and he then forced Caroline A. to proceed up the stairs to the roof of the building where the sexual assault took place.[FN11]

Defendants' Motions

Defendant Gilston Electrical Contracting Corporation (Gilston) installed the intercom system and door locking system for the Housing Authority at numerous buildings maintained by the Housing Authority, including Building 14 where the plaintiff resided and the assault occurred.[FN12]

Defendant Gilston moves for an order, pursuant to CPLR 3212, dismissing plaintiff's [*3]complaint. Defendant Housing Authority also moves for an order granting summary judgment dismissing plaintiff's complaint.

In addition, defendant Verizon New York, Inc. (Verizon) also moves, by separate motion, for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff's complaint and all cross claims asserted by co-defendants.

Summary Judgment Standard

Our Courts have consistently outlined the summary judgment standard which is to be applied by the Court when determining whether sufficient evidence has been presented warranting granting this drastic relief.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320 [1986].) Once that initial burden has been satisfied, the "burden shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden however, always remains where it began, i.e., with the proponent of the issue. Thus "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." (Director Office of Workers Compensation Programs v. Greenwich Collieries, supra , 512 U.S. at 272; 300 East 34th Street Co. v. Habeeb, 248 AD2d 50, 683 NYS2d 175 [1st Dept. 1997].)

The court's function on a motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 49 [1957] ). Since summary judgment is a drastic remedy such relief should not be granted if there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 [1978].) Thus, when the existence of an issue of fact is evenly balanced, the party that bears the burden must lose. (Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra ). The role of the court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. As the Court stated in Knepka v. Tallman, (278 AD2d 811, 718 NYS2d 541 [4th Dept.2000]):

In analyzing the proof proffered by plaintiffs who are opposing defendants' motions for summary judgment, the Court is obligated to construe the facts in a light most favorable to plaintiffs (see Rosario v. Universal Truck & Trailer Serv., 7 AD3d 306, 309, 779 NYS2d 1 [1st Dept. 2004]; Silvestro v. Wartella, 224 AD2d 799, 637 NYS2d 240 [3d Dept. 1996]; Mickelson v. Babcock, 190 AD2d 1037, 593 NYS2d 657 [4th Dept. 1993]).

Moreover, a party, such as plaintiff Caroline A., when faced with a motion by defendants for summary judgment, which manifestly is intended to foreclose a trial, our Courts have consistently held that the evidence should be liberally construed in a light most favorable to the plaintiff. (Kesselman v. Lever House Restaurant, 2006 NY Slip Op 3447, 29 AD3d 302, 816 NYS2d 13 [1st Dept. 2006]; Sanchez v. Leher McGovern Bovis Inc., 303 AD2d 244, 756 NYS2d 44, [1st Dept. 2003]; Garcia v. Bronx Lebanon Hospital, 287 AD2d 381, 731 NYS2d 702 [1st Dept. 2001]; Lorenzo v. Plitt Theaters Inc., 267 AD2d 54, 699 NYS2d 388 [1st Dept. 1999].

The Evidence

Both plaintiffs testified at a 50 H hearing and at their examinations before trial that the [*4]Housing Authority was notified that the intercom system connected to their apartment was not working.[FN13] Their complaints concerning the non-working intercom system were made by telephone calls to an employee of the Housing Authority identified as "Awilda Soto."[FN14] Caroline A. also testified, at her examination before trial, that the door leading to the roof was unlocked and the alarm system installed would sound-off when the roof's door was opened but only for a few seconds.[FN15] No one responded to the alarm at the roof door when it was activated by Williams as he forced Caroline A. at gunpoint to accompany him to the roof.[FN16]

When Caroline A. returned to her apartment after she was assaulted by Williams, she told her mother what happened, and her brother promptly called the police. [FN17] Caroline A. was initially treated at Lincoln Hospital and continued to receive psychological treatment for a significant period of time.[FN18] Williams was later arrested and convicted for the sexual assault he committed against Caroline A.

The electronic intercom system installed in plaintiffs' building was designed to link each apartment to the front entrance door utilizing telephone lines installed by defendant Verizon. The evidence adduced shows that Gilston did contract to install similar systems in other housing units maintained by the Housing Authority during the period in which Gilston was maintaining the system it installed in plaintiffs' building. The intercom system was intended to permit a party seeking entry to a residential building, such as the building where plaintiffs resided, to press a button notifying the desired tenant of that person's desire to enter the building. The tenant, after speaking to the person seeking entry, could then electronically release the front door lock permitting the visitor to enter the building.[FN19] [*5]

This system was installed by Gilston pursuant to a contract dated September 29, 1994.[FN20] Craig Gilston, the President of Gilston Electrical Contracting Corp, testified at his examination before trial that his company also guaranteed for two years the intercom buzzer system after the Housing Authority issued an acceptance letter. Gilston indicated that his company's contract with the Housing Authority, which ran from June 20, 1998 through June 19, 2000, also contained a "guarantee."[FN21] Gilston acknowledged that his company also entered a three-year service agreement to maintain the intercom systems it installed which included plaintiffs' building located at 695 East 163rd Street (or Building 14). This service agreement commenced at the end of the guarantee period and ran from June 20, 2000 to June 19, 2003. It is unrefuted that the criminal acts perpetrated by Williams occurred during the three-year service period.[FN22]

Craig Gilston conceded that the agreement entered into with the Housing Authority required his company to respond to requests made by the Housing Authority to rectify complaints made by tenants when their intercom system was not working properly.[FN23] He also testified that Gilston's service agreement included servicing the residents of Building 14, where plaintiffs resided. It is clear that Gilston was obligated to cure complaints made by tenants regarding their non-functioning intercom systems in plaintiffs' building.[FN24]

Craig Gilston's testimony at his examination before trial, also described the procedure employed by his company to rectify complaints reported by tenants to the Housing Authority. Gilston stated that his company would receive service tickets issued by the Housing Authority that notified his company of the apartments that needed their intercom service repaired. [FN25] He was unable to identify the apartments where the intercom system was not working but acknowledged that there were occasions when his company would be notified by fax transmissions from the Housing Authority requesting his company to correct a problem reported by a tenant in the building where plaintiffs resided.[FN26]

Gilston, however, could not locate his company's log book which recorded the requests made by the Housing Authority to repair intercom systems, nor could his company locate faxes [*6]from that Housing Authority regarding intercom systems in need of repair.[FN27] Parenthetically, Gilston also conceded that his company was unable to locate billing records that his company sent to the Housing Authority regarding the intercom systems which his company repaired. Notwithstanding Gilston's inability to find the log book or faxes sent to his company by the Housing Authority, Gilston admitted that his company was required, pursuant to its contract with the Housing Authority, to keep a record of "calls" or requests from the Housing Authority to correct non-working intercom systems.[FN28]

Gilston's contract with the Housing Authority also required Gilston to install, outside the front door of each building, a panel listing the name and apartment number of each tenant. This listing of tenants was intended to provide a visitor or in general persons seeking to enter the building the ability to speak to a tenant. [FN29] It is also evident from the record that Gilston did service intercom systems of tenants in the same building where plaintiffs resided during the three-year service period. Gilston's president also testified that sometimes his company found that inoperable intercom systems were caused by the wiring installed by Verizon. However, Gilston never identified or offered proof of a single instance where the intercom system was not working because of faulty wiring.

Uncontested evidence was presented that the Housing Authority was aware of 169 apartments in plaintiffs' building that were not linked to the intercom system which Gilston contracted to install.[FN30] It is unclear from the record now before this Court whether the failure to install intercom systems to 169 apartments in plaintiffs' building and the non working intercom system installed in plaintiffs' apartment is attributable solely to Gilston. Nevertheless, Gilston failed to submit sufficient proof even to make a prima facie showing that Verizon shared some responsibility for the apartments that were never connected to the intercom system or to the non-working system installed in plaintiffs' apartment.[FN31]

Moreover, although the records maintained by the Housing Authority allegedly do not reflect complaints made by plaintiffs concerning their intercom system, the records identified at the Housing Authority's examination before trial (by Kevin Norman) demonstrated that the Housing Authority did acknowledge that it had received approximately fourteen complaints from [*7]tenants in plaintiffs' building that their intercom system was not functioning properly.[FN32]

Kevin Norman (Norman), the Assistant Building Superintendent testifying on behalf of Housing Authority stated that he was aware, prior to January 24, 2001, i.e. the day that Caroline A. was assaulted, of the problems that existed with the intercom system in the building where plaintiffs resided.[FN33] Norman also testified that, to the best of his knowledge, no written work orders or records were kept by the Housing Authority pertaining to work performed by Gilston to correct intercom problems. Nevertheless, during his December 7, 2006 examination before trial, Norman identified bills or work tickets for services performed by Gilston, relating to apartments in the "A" line of the plaintiffs' building, which is the section where plaintiffs' apartment is located.[FN34]

Norman admitted he never personally notified Verizon of problems regarding phone lines as a potential source of problems which affected the intercom systems installed by Gilston. He was aware, however, of a Housing Authority memorandum that was sent to Gilston and Verizon in which the Housing Authority requested that Verizon participate in a "Go Back" project due the continuing problems with the intercom systems and to install intercom service to all unconnected apartments. Norman did not deny that the "Go Back" project was unsuccessful.[FN35]

Sufficient evidence was adduced which demonstrates that all of the defendants were aware that numerous apartments did not have working intercom systems. The Housing Authority's memorandum, dated October 19, 2000, to Norman and others at Forest Houses directed Norman to ". . . look into . . . and survey" the intercom systems that were never connected. This memo reads, in part:

"As you may be aware, the NYCHA has commenced the Go Back' project with Verizon to connect apartments which were never connected to the intercom system when RJ71C interface Jacks was initially installed. Contract Administration Department received notice from Verizon that they intend to visit your development on Monday, November 20, 2000 to commence work on restoring service to all unconnected apartments which registered in the Security Section intercom database. Verizon's technicians will meet a Security Section Inspector and contractor (if possible) at your management office at 9:30am...

"Verizon has a list of 169 apartments that need service. If you have more to report, please send me the apartment numbers with telephone numbers as soon as [*8]

possible."[FN36]

Based on the evidence presented in the record, Verizon's role in the case at bar is limited to the service it provided, which is confined to installing wiring components to apartments which never had intercom services. Moreover, no contract is submitted by any of the parties to this lawsuit which identifies or spells out the service which Verizon was required to perform. Secondly, although references are made in the Housing Authority's memorandum regarding the "Go Back" project, no evidence is presented which specifies whether part, some, or all of the problems related to non-working systems, or intercom systems, which were not installed in the 169 apartments in plaintiffs' building, are attributable to Verizon. Oblique references by plaintiffs and co-defendants regarding the telephone wiring installed by Verizon as a cause of the problems which plaintiffs incurred regarding their intercom systems are not substantiated. Mere references to Verizon as a culprit regarding the non-working system installed in plaintiffs' apartment and elsewhere are conclusory and not supported by the evidence.

Defendant Housing Authority

This Court's inquiry is, inter alia, to ascertain whether the intercom system installed at the direction and control of the Housing Authority satisfied the minimal security standard. It is true that a landlord has a duty to take minimal precautions to protect tenants from reasonable foreseeable criminal acts (see Miller v. State of New York,62 NY2d 506, 513, 467 NE2d 493, 478 NYS2d 829 [1984]; Gill v. New York City Hous. Auth., 130 AD2d 256, 519 NYS2d 264 [1st Dept. 1987]; Iannelli v. Powers, 114 AD2d 157, 161, 498 NYS2d 377 [2d Dept. 1986] appeal denied 68 NY2d 604; Hendricks v. Kempler, 156 AD2d 425, 548 NYS2d 544 [2d Dept. 1984]). The core of this duty requires the land owner to exercise reasonable care to maintain the landowner's property in a safe condition (see Nallan v. Helmsley - Spear Inc., 50 NY2d 507, 519, 407 NE2d 451, 429 NYS2d 606 [1980]; Basso v. Miller, 40 NY2d 233, 241, 352 NE2d 868, 386 NYS2d 564 [1976]).

Measuring this legal standard by the facts presented in the case at bar, this Court is required to consider not only whether there was a working intercom connection from plaintiffs' apartment to the front door but also such factors as the inability to provide a thirteen year-old child, one of the tenants at the Forest Houses, a key to gain entrance to the front door. Obviously this policy, if in place when Caroline A. returned from the library, is a factor to be considered when reviewing the events which led to her injury. Plaintiffs' testimony at their examinations before trial, among other things, raised a significant factual issue regarding whether the Housing Authority had sufficient notice of the non functioning intercom system installed in plaintiffs' apartment to correct this condition before Caroline A. was assaulted.[FN37] [*9]

In addition, the Housing Authority placed an alarm on the door leading to the roof. When activated the alarm would ring for three(3) or four(4) seconds. It is difficult for this Court to comprehend precisely what security measure the Housing Authority intended to achieve when it installed this device on the door leading to the roof. No other security devices such as monitors, or cameras, were installed in plaintiff's building. Consequently, whether the Housing Authority provided minimal security for tenants such as plaintiffs, is the central issue for this Court to consider in determining the liability of the Housing Authority.[FN38]

The evidence offered by plaintiffs, in opposition to defendants' motion, includes an extensive 14 page affidavit from a security expert.[FN39] His background and training reflect his tenure with the New York City Police Department, and his employment as an investigator for the Civilian Complaint Board and the Internal Affairs Division. In addition, he also served as Deputy Chief of the Office of School Safety of the New York City Board of Education. His affidavit identifies the numerous records he reviewed including crime statistics recorded by the New York City Police Department for 1999, 2000, and January 2001 regarding the Forest Houses and also crime statistics compiled by the New York City Housing Authority for 1998, 1999 and 2000. [FN40]

Plaintiffs' expert noted that the "Forest Housing" apartment complex is composed of 15 residential buildings each containing 80 apartments located within Sector H of the 42nd Police Precinct. According to plaintiffs' expert, Sector H, the area where plaintiffs reside, had the highest crime rate for the years 1999 and 2000. He also points out that in January 2001, Sector H reported 31 assaults, 13 burglaries, 4 robberies, 6 grand larcenies, 1 murder and 1 rape.[FN41]

The entries compiled by the Forest House's Caretaker's logbook also indicates major criminal activity. Plaintiffs' expert supports this conclusion by referring to entries made by caretakers employed by the Housing Authority who noted, for example, that on January 15, 2001, someone, (who is not identified) was shot. Also the caretakers were required to clean up blood on the floor in one of the Housing Authority's buildings emanating from a gun shot wound. Other reports clearly show that drug activity was so rampant during the month of January 2001 that caretakers had to be removed from their assigned buildings for their own safety.

Plaintiffs' expert's review of both police records and the records, although incomplete, maintained by the Housing Authority, recorded 66 felonies in 1998, 20 felonies in 1999 and 55 [*10]felonies in 2000 all occurring at the Forest Houses. [FN42] Based upon his review of the records and data outlined in his affidavit, plaintiffs' expert opines that the Housing Authority departed from good and accepted practices for security to the premises where plaintiffs resided and that the failure of the Housing Authority to provide minimal security for residents at the Forest Houses was a substantial factor in causing the crime that was perpetrated by Williams.

His opinion also considered such factors as: the failure of the Housing Authority to repair and maintain the intercom buzzer system in plaintiffs' building, the failure of the Housing Authority to provide front door keys to all household members, failure to have a proper security system in place when unauthorized persons enter the roof and the absence of building security guards. [FN43] Plaintiffs' expert also refers to the Housing Authority's failure to comply with New York's Multiple Dwelling Law § 50-a which requires multiple dwelling apartment buildings to be equipped with a working intercom system with a buzzer to enable residents to control access to their building.

Defendant Housing Authority argues that plaintiffs' claim should be dismissed since plaintiffs failed to establish that the Housing Authority breached its duty to provide minimal security to prevent Williams from gaining entrance to the building where plaintiffs maintained their residence. In support of this argument, the Housing Authority points to the uncontested evidence that the entrance door to plaintiffs' building was locked and Williams entered the building through no fault of the Housing Authority since Williams entered plaintiffs' building when a tenant opened the entrance door permitting him entry to the lobby and elevators.

The Housing Authority refers this Court to the decision rendered by the Court of Appeals, in Burgos v. Aqueduct Realty Co., 92 NY2d 544, 548, 684 NYS2d 139 (1998) where Judge Kaye, writing for a unanimous court, reiterated the well-known aphorism that landlords have a common law duty to take minimal precautions to protect tenants from foreseeable harm. Consequently, the Housing Authority asserts that Burgos, supra , makes it clear that liability may not be imposed on a landlord, such as the Housing Authority, unless "the assailant gained access to the premises through a negligently maintained entrance" (Burgos, at 450). The Housing Authority further asserts that since Williams entered the building with Caroline A., when a tenant opened the locked door, the Housing Authority is not liable for Williams' criminal conduct. [*11]

However, in Nallan v. Hemsley-Spear Inc., 50 NY2d 507, 407 NE2d 451, 429 NYS2d 606 (1980), the plaintiff, a union officer, had spoken out against certain union practices which plaintiff believed were indicative of corruption. Later, after his corruption charges were publicized, the plaintiff went to attend a meeting in defendant's building. He was shot and seriously injured while signing a guest register in the building's lobby. The lobby attendant, who ordinarily was stationed at the front desk, was away. The absence of the lobby attendant presented the issue of whether there was a foreseeable risk of harm from criminal activities of third persons on the premises when plaintiff was shot since threats were previously made on his life. The court in Nallan, supra , reversing the dismissal of plaintiff's action recognized the duty of landlords to include taking steps to minimize danger from criminal acts. More important was the court's holding in Jacqueline S. v. City of New York, 81 NY2d 288, 294, 614 NE2d 723, 598 NYS2d 160 (1993), where the court revisited Nallan and stated "we cast forseeability more generally, i.e., in terms of past experience that there is a likelihood of conduct on the part of third persons ... which is likely to endanger the safety of the visitor."

The circumstances in Jacqueline S. v. City of New York, supra , which led to the abduction and rape of the plaintiff by an assailant in plaintiff's building are similar to the sexual assault perpetrated on Caroline A. in the case at bar. Jacqueline S was a 14 year-old resident of a public housing project who was abducted in the lobby of her building and taken to a utility room on the roof of the building where the assault occurred. The court in Jacqueline S., supra , reviewing the common law duty of the Housing Authority to provide adequate safety for its residents examined the criminal activity at the location where plaintiff was harmed and stated:

"Whether knowledge of criminal activities occurring at various points within a unified public housing complex, such as Wagner Houses, can be sufficient to make injury to a person in one of the buildings foreseeable, must depend on the location, nature and extent of the previous criminal activities and their similarity, proximity or other relationship to the crime in question. (Jacqueline S., 81 NY2d at 295 [Citations omitted]).

In the case at bar the location and extent of criminal activity in and about plaintiffs' building at a time when the Housing Authority failed to have in place (in plaintiffs' building) a working intercom buzzer system that would have allowed Caroline A. to communicate with her mother, and the failure to provide keys to the front door to family members are factors to be considered when assessing whether the Housing Authority provided adequate safety measures. Foreseeability of the risk of injury is an essential element of a negligence cause of action instituted by the plaintiffs since the event giving rise to injury sustained by Caroline A. could have been reasonably anticipated. Thus, the risk of injury as a result of the conduct of the Housing Authority must not be merely possible but probable. (Pinero v. Rite Aid of New York Inc., 294 AD2d 251, 743 NYS2d 21 [1st Dept. 2002], aff'd. 99 NY2d 541 [2002]).

Defendant Housing Authority also relies on Johnson v. New York City Health and Hospitals Corp., 246 AD2d 88, 676 NYS2d 38 (1st Dept. 1988) as supporting authority for its contention that plaintiffs' complaint should be dismissed. However, the facts presented in Johnson, supra , concerning the circumstances which led to the sexual assault and resulting murder of plaintiff's wife, when viewed in the context of the security system employed by the defendant hospital significantly separates the efforts made by the hospital to provide security [*12]from the Housing Authority's efforts to implement a workable intercom system in plaintiff's building in a high-crime area.

The perpetrator in Johnson, supra , was a homeless intruder who had been a patient at the hospital. The wrongful death action brought by decedent's husband presented a damage claim premised on the hospital's negligence in failing to provide minimal security to protect plaintiff's wife who was working in her office at the hospital when the assault occurred. The trial court's decision which denied plaintiff's motion to set aside the verdict was affirmed by the Appellate Division. The court's affirmance was based upon defendant's hospital's diligent efforts to evict trespassers who were in the hospital complex. Moreover, the hospital's security system employed 65 to 70 security officers and the protocols established by the hospital represented a reasonable security plan which detailed the precautions undertaken to protect employees from foreseeable harm.

A substantial flaw in the arguments presented the Housing Authority is its failure to recognize that its common law duty to take even minimal precautions to protect its tenants such as plaintiffs, and their family members is not limited to making sure that the entrance door was operating properly. Plaintiffs demonstrated that the failure to maintain a working intercom system, for several months before the infant plaintiff was harmed by Williams, was a substantial factor in the sequence of events that led to her injury. A duty of care is said to exist where "the plaintiff's interests are entitled to legal protection against defendants' conduct" (Prosser, Torts § 53 at 325 4th ed]; see Pulka v. Edelman, 40 NY2d 781, 782, 358 NE2d 1019, 390 NYS2d 393 [1976]). Manifestly, the extent of any such duty is defined by the risk of harm to be perceived. (Palsgraf v. Long Island R. Co., 248 NY 339, 344 [1928]).

To establish a prima facie case of negligence, plaintiff must demonstrate (1) that the defendant owed a duty of reasonable care, (2) a breach of that duty, and (3) plaintiff suffered resulting injury proximately caused by the breach (see Boltax v. Joy Day Camp, 67 NY2d 617, 499 NYS2d 660 [1986]). The threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. (Espinal v. Melville Snow Contractors, Inc., 98 NY2d 136, 746 NYS2d 120 [2002]). It is the court's responsibility to determine whether there is a duty, and it "involves a very delicate balancing of such considerations as logic, common sense, science, and public policy" (Blye v. Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, 108 [1st Dept. 1987], aff'd 72 NY2d 888 [1988], citing Bovsun v. Samperi, 61 NY2d 219, 228 [1984]; De Angelis v. Lutheran Med. Center, 58 NY2d 1053, 1055 [1983]). The scope of any such duty of care varies with the forseeability of the possible harm (Tagle v. Jakob, 97 NY2d 165, 168 [2001]).

Here, defendant Housing Authority owed a duty of reasonable care to properly maintain the intercom buzzer system that would have alerted the infant plaintiff's mother that her daughter needed to gain entrance to the building to return to her apartment. It is well settled law that a landowner has a common law duty to maintain the public areas of their property reasonably safe for those who enter. (see Basso v. Miller, 40 NY2d 233, 241). Moreover, Multiple Dwelling Law § 50-a sets the standard that buildings with more than eight residential units are required to have both a front door lock and an intercom buzzer system. Here, the Housing Authority failed to provide a reasonable safe measure for its tenants.

Notice Issue [*13]

To the extent that the Housing Authority contends it never received notice of the problem with the intercom connection to plaintiffs' apartment, testimony presented by plaintiff's mother and from Caroline A., is sufficient to create an issue of fact that they informed Ms. Awilda, who was employed by the Housing Authority, about the non functioning intercom problem in their apartment. No testimony or other evidence is presented by the Housing Authority denying the responsibility of its employee, Awilda, to record complaints from tenants or whether their employee ever received complaints from plaintiffs. Obviously, credibility is not at issue for this Court to resolve when deciding a motion for summary judgment and consequently, notice is not an issue to be resolved by this Court. (Chunn v. New York City Housing Authority, 55 AD3d 437, 866 NYS2d 145 [1st Dept. 2008]; Behagen v. L & L Painting Co., 50 AD3d 403, 858 NYS2d 97 [1st Dept.2008]; Siegel, NY Practice § 278 [4th Ed. 2005] ).

Based on the foregoing, the Court finds plaintiffs have established a prima facie case against the Housing Authority since the Housing Authority had reasonable and adequate notice of serious crime problems which existed in and about the building where plaintiff resided; that the intercom/security system installed in plaintiffs' apartment was not working and that there were numerous apartments in plaintiffs' building that were not set up with an intercom system that would permit tenants to communicate with persons at the front door or successfully release the electronic lock to admit individuals into their building.The Court is further satisfied that an issue of fact is also framed concerning whether a 3 or 4 second alarm system at the roof door qualifies as a sufficient minimal security device that was adequate enough to protect Caroline A. or any other tenant. Finally, this Court finds that an unresolved issue of fact is framed concerning the unrebutted policy of the Housing Authority not to provide minor tenants with a key to the front door which proximately caused Caroline A. and other tenants who are minors to wait outside their building, unable to use the intercom to reach their parents and where they were easily observed and evaluated by an assailant, such as Williams.

Therefore, a material question of fact remains whether Housing Authority breached its limited duty to the infant-plaintiff, whether it failed to provide minimal security at the front door of the building and whether such failures foreseeably led to infant-plaintiff becoming the victim of a sexual assault by Williams. Accordingly, the Housing Authority's motion for summary judgment dismissing the complaint is denied. (see Alvarez v. Prospect Hosp.,

68 NY2d 320, 501 NE2d 572 [1986]).

Defendant Gilston's Liability

Gilston and the cross claims it asserted against Verizon raise several arguments addressed to dismissing plaintiffs' complaint. Gilston formulates a mirage of contentions starting with the now putative principle set forth in Espinal v. Melville Snow Contractors Inc. 98 NY2d 136, 773 NE2d 485, 746 NYS2d 120 [2002], where the Court held that a snow removal contractor is under no duty to a third party who was injured, resulting from contractor's negligent removal snow from a parking lot. The Court reasoned that "a contractual obligation standing alone will generally not give rise to tort liability in favor of a third party." (citations omitted). Here, Gilston argues that its contract with the Housing Authority to install a working buzzer security system for tenants at Forest Houses was not intended to benefit plaintiffs.

Unlike Espinal, supra , where the vendor's contract with the municipality was intended to provide a service for the general public, here the contract between the Housing Authority and [*14]Gilston was intended to provide a direct benefit to tenants including plaintiffs who resided in Building 14. Moreover, the contractor retained by the municipality in Espinal was performing a service normally undertaken by a municipality.

Thus, Gilston's liability will turn on whether Gilston failed to install and maintain a functioning intercom security system pursuant to its agreement and guarantee with the Housing Authority. Gilston at its examination before trial acknowledged that the service agreement entered into with the Housing Authority, which commenced on June 30, 2000 and continued to June 19, 2003, required Gilston, when notified by the Housing Authority, to service and repair a non-functioning intercom buzzard telephone systems. Gilston when notified by the Housing Authority would dispatch technicians to perform the necessary repairs to the tenants whose intercom systems were not functioning properly.

Whether the rationale advanced by the court in Espinal, supra , should provide an absolute basis to foreclose imposing tort liability to an entrepreneur whose contractual obligation encompasses providing a security system to protect tenants in buildings maintained by a municipal agency is open to question. Certainly, the Housing Authority is required to adhere to a well-settled rule which is to maintain its housing facility in a reasonably safe condition. In the case at bar there are "no indefinite number of potential beneficiaries." Gilston's contract clearly identified Gilston's obligations, and the benefits which tenants would achieve by the installation of intercom systems in the Forest Houses is self-evident. The intercom system, by its nature, would also be a security measure to benefit tenants at the Forest Houses.

The intercom system installed by Gilston required wiring telephone lines to every apartment; and once achieved, Gilston's role required connecting the tenants' phone lines to the buzzer system aligned outside the locked front door. Given the scope of this project, Gilston was well aware that the intercom system would provide a measure of protection to tenants. To suggest that the intercom system was not intended to benefit tenants at the Forest Houses is illogical.

In addition, Gilston refers this Court to several other cases, which are distinguishable, where the Court did not impose tort liability in favor of a third-party. (see Moch v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 [1927] [where the Court refused to find that defendants' failure to provide adequate water pressure to water hydrants was actionable]; Rahim v. Scottile Security Company, 32 AD3d 77, 817 NYS2d 33 [1st Dept. 2006] [store employee assaulted by trespasser who remained in the store after closing hours]; Anokye v. 240 East 175th Street Housing Development Fund Corporation, 16 AD3d 287, 792 NYS2d 417 [1st Dept. 2005] [security guard absent from lobby, complaint dismissed, security company agreement did not require assuming protective duty]; Strauss v. Belle Realty Company, 98 AD2d 424, 469 NYS2d 948 [2d Dept. 1983] [during a blackout tenant unable to obtain running water due to the loss of electrical power was injured while descending stairs]).

The Housing Authority obviously intended to provide an intercom service that would benefit its residents including plaintiffs, but it also attempted to satisfy its common law duty to maintain the premises where plaintiff resided in a reasonably safe condition. The failure of Gilston to exercise reasonable care in the performance of its contractual obligations knowing the importance of an intercom buzzer system to the tenants precludes its reliance upon such cases as Espinal, supra .

Contrary to the cases cited by Gilston, there are circumstances when even parties outside [*15]a contract are permitted to recover for tort damages arising out of negligently performed or omitted contractual duties (see Palka v. Service master Management Services Corp., 83 NY2d 579, 634 NE2d 189, 193, 611 NYS2d 817 [1994] ). In Palka, the plaintiff sustained personal injuries when a fan fell from a wall striking plaintiff. Prior to the accident the hospital contracted with defendant, a management corporation, to implement a maintenance program for the hospital where plaintiff was employed. It is as the court aptly pointed out in Palka, supra , "There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use." (Palka, 83 NY2d at 586, quoting MacPherson v. Buick Motor Co., 217 N.Y. 382, 393[1916] [Cardozo, J.]). Parenthetically the defendant argued in Palka that it owed no duty to plaintiff, moreover, the court's holding in Palka, supra , is not an aberration. (see Verdi v. Top Lift & Truck Inc., 50 AD3d 574, 856 NYS2d 605 [1st Dept. 2008]). Defendant "owed a duty to plaintiff, even though it was not in privity" to plaintiff; (Musilli v. Kohler Company et al, 50 AD3d 1600, 857 NYS2d 404, [4th Dept. 2008]) shower display door fell on plaintiff, the Court held there is an issue of fact as to whether defendant South Pro's contract displaced defendant Home Depot's duty to maintain the premises safely; (Altamarano v. Door Automation Corp., 48 AD3d 308, 851 NYS2d 508 [1st Dept. 2008] ), plaintiff, a "non contracting party" permitted to pursue personal injury action since defendant "launched a force or instrument of harm."

Consequently, the essential question raised by the action instituted by plaintiffs is whether the cloak of immunity, as fashioned by the opinion in Espinal, supra , will be extended to a contractor who failed to perform its contractual obligations to provide a workable intercom system to tenants in a housing project for which the system was intended to benefit. Moreover, the Housing Authority's interest in pursuing its contract with Gilston at the Forest Houses sought to provide for its tenants an intercom buzzer system that would satisfy its common law duty to maintain the premises where plaintiffs resided in a reasonably safe condition.

Thus, Gilston's liability will depend on whether it complied with the terms of the contract it entered into with Housing Authority to install and maintain, pursuant to the terms of its guarantee with the Housing Authority, a functioning intercom security system. Gilston acknowledged at his examination before trial that the service agreement his company entered into with the Housing Authority, which commenced on June 30, 2000 and continued to June 19, 2003 required his company to service and repair non-functioning intercom buzzer systems. The October 19, 2000 memorandum from Carlos Rivera required Norman, the Housing Authority's superintendent, to identify the apartments whose intercom systems needed repairs and to commence installing intercom service to 169 apartments in Building 14.

Gilston's testimony, at his examination before trial regarding Verizon's participation in setting up an intercom system as a proximate cause of the non-working systems in the apartments at Forest Houses, in particular Building 14, is not supported by the record. Mere references without specificity or proof in admissible form concerning Verizon's failure to properly install the telephone wiring to the apartments in Building 14 is insufficient.

Conclusion

Accordingly, defendant Gilston's motion to dismiss plaintiffs' complaint is denied. Defendant Housing Authority's motion to dismiss plaintiffs' complaint is also denied. However, [*16]defendant Verizon's motion for summary judgment is granted.

This constitutes the decision and order of this Court.

Dated:April 13, 2009

Hon. George D. Salerno, J.S.C.

Footnotes

Footnote 1: Plaintiffs Complaint, Exhibit "B"; Plaintiffs Verified Bill of Particulars Exhibit "D"; Defendant Gilston's Verified Answer Exhibit "B".

Footnote 2: Plaintiffs Verified Bill of Particulars (response to Gilston's Demand, p.5; Caroline A.'s Transcript [50 H Hearing] p.3 Exhibit "E"; Caroline A.'s transcript [4/25/04] p.8; Norman Transcript p.12 L8-10, p. 13 L 16-18, p. 15 L 11-14.

Footnote 3: Caroline A.'s Transcript [50 H Hearing] Exhibit "E" p.12 LL 23-25, p.13 LL 1-15; Caroline A.'s Transcript Exhibit "G" p.30 LL 6-11, p. 28 LL 22-25, p. 29, p.30 LL 2-19; Marianela's Deposition Transcript Exhibit "I" p.31-35, p.56-57.

Footnote 4: Marianela's Transcript Exhibit "I" p. 50-53, Marianela's Transcript Exhibit "H" p. 9-10, p. 12 LL 3-11; Caroline A.'s Transcript [50 H Hearing] p. 12-13

Footnote 5: Caroline A.'s Transcript [50 H Hearing] Exhibit "E" p. 9 LL 20-25, p. 10 LL 2-16.

Footnote 6: See Plaintiff's Exhibit "P" Contract for New Telephone Entry Intercom and Electro Magnetic Locking System at various Projects; Craig Gilston's Transcript Plaintiff's Exhibit "O" p.12, p.15, p.23, p.32-33.

Footnote 7: Gilston's Transcript p.35 LL 5-25, p.36 L2, p.37 L2-16 P. 38 L10-12, L14-18, p. 41 L6-9.

Footnote 8: Caroline A's Transcript Exhibit "F" [4/20/04] p. 18, L5-9, L17-19, P. 22 L 13-14, Caroline A.'s Transcript Exhibit "G" [4/25/06] p. 29-30 LL 6-19 P. 13, L16-19, Marianela A's Transcript [50H Hearing] Exhibit "H" p.9 LL 7-21; Marianela A's Transcript [4/20/04] Exhibit "I" p.31 LL 9-16, p.32 L20-25, p.33 LL 2-21, p.34 LL3-21; Marianela A's Transcript [12/7/06] Exhibit "I" p.10 L 16-25, p.11 L 17-24, p.13 L 6-9, p. 14 L 20-25.

Footnote 9: Caroline A's Transcript, [4/20/04] Exhibit "F" p.26, LL 21-25, p.27 L 2-3, LL 10-25, p.28 -29; Caroline A.'s Transcript [4/25/06] Exhibit "G" p.42 LL 7-25, p. 43-51.

Footnote 10: Caroline A.'s Transcript [4/25/06] Exhibit "G" p.51 LL 4-24.

Footnote 11: id p.53 LL 6-14, p.54 LL 8-24.

Footnote 12: Gilston's Transcript, [5/11/06] Exhibit "G" p.21-25, p.11 L 2-3 P. 13 L4-6,

p.14 L5-21, p.15 LL 4-7, p.19 LL10-18.

Footnote 13: Caroline A.'s Transcript [50 H Hearing] Exhibit "E" p.15 LL 9-21; Caroline A's Transcript [4/25/06] Exhibit "G" p.23 LL 12-18; Marianela A's. Transcript [50 H Hearing] Exhibit "H" p.9 LL 7-25, p.10 LL 2-11; Marianela A's. Transcript Exhibit "I" p.48 LL6-21, p.52 L 18-25.

Footnote 14: Marianela A's Transcript Exhibit "I" p.52 L18-25; Marianela A's Transcript Exhibit "J" p.16 LL 7-16, p.18 L 5-9, p.19 LL 8-11.

Footnote 15: Caroline A.'s. Transcript [50 H Hearing] Exhibit "E" p.24 LL 9-21, p.25 L 2-3, p.25 -26 LL2-9; Norman Transcript, Exhibit "K", p.23 LL9-21, p.24 LL3 -23,

p.25 LL 13-25.

Footnote 16: Caroline A.'s. Transcript [50 H Hearing], Exhibit "E" p.27 LL 20-25, p.26 LL 2-4, LL 16-18, p.29 LL 9-15, p.32 L 14-21, Caroline A.'s Transcript Exhibit "F" p. 34 LL 22-25, p.35 LL 2-11, p.37 LL 21-24.

Footnote 17: Caroline A.'s. Transcript [50 H Hearing], Exhibit "E" p.46 LL 12-21.

Footnote 18: id p.47 L 12-25, p.55 LL 19-25, p.56 LL 2-21, p.58 LL 18-25, p.59-65.

Footnote 19: Craig Gilston Transcript Exhibit "O" p.10 L 22-25, p.11 2-3 P. 12 LL 12-25, p.13 L 2-14, p.14 LL 17-21, p.15 LL 4-11, p.16 LL 15-22, p.16 LL 16-25 [billing records], p.19 LL 10-18, p.21 LL 9-23, p.22 L 4-6 [guarantee period]; Exhibit "P" The contract for New Telephone Entry Intercom and Electro-Magnetic Locking System; Norman Transcript Exhibit "K" p.51 LL 14-25, p.52 LL2-22.

Footnote 20: Exhibit P, Gilston Transcript Exhibit "O" p.12 LL 12-19 and p.14 LL 5-15.

Footnote 21: Gilston Transcript Exhibit "O" p.22 L 4-25, p.23 L 2-15.

Footnote 22: id.

Footnote 23: Gilston Transcript Exhibit "O" p.24-27.

Footnote 24: id p.29 LL 7-25, p.30 L 2-3.

Footnote 25: Gilston Transcript Exhibit "O" p.25 L 21-25, p.26 LL 2-18, p.27 LL 8-20,

p.29 LL7 - 19, p.33 LL 11-19.

Footnote 26: id p.29 LL 7-25.

Footnote 27: id p.25 LL 21-25, p.26 LL 2-20.

Footnote 28:id

Footnote 29: Norman Transcript Exhibit "K" [4/29/04], p.51 LL 14-25, p.52 LL 2-25, p. 53 LL 2-9.

Footnote 30: Gilston Transcript Exhibit "O" p.49 LL 4-12; Exhibit L, memorandum dated "10/19/2000 9:am" from Carlos Rivera regarding "Go Back" project "requiring Norman to look into .... our many apt. intercoms that need repair.

Footnote 31: id, "Verizon has a list of 169 apartments that need service."

Footnote 32: Norman Transcript Exhibit "K" p.73-91, also Exhibit "L" New York Housing Authority Forest Houses Intercom Service Request Form; Exhibit "L" copies of NYCHA WORK TICKET SYSTEM [FORMS].

Footnote 33: Norman Transcript, Exhibit "K" p.34 LL 24-25, p.35 LL 2-6, p.37 LL 16-25, p.38 LL 2-4, p.42 LL 21-25, p.43 L 2.

Footnote 34: id p.84 LL 15-25, p.85 LL 2-13, p.86 LL 2-16.

Footnote 35: id p.66 LL 6-10, p.67 LL 10-13.

Footnote 36: Norman Transcript Exhibit "K" page 5 LL 7-11; Exhibit L previously identified at Norman's Deposition.

Footnote 37: Caroline A.'s Transcript, [50 H Hearing], Exhibit "E" p.12 L 25, p.13 LL 2-6,

p.15 LL 8-21; Exhibit "F" p.12 LL 3-6, p.14 LL 9-13, Exhibit "G" p.20 LL 4-8, p.23 LL 12-20; Marianela A's, [50 H Hearing], Exhibit "H" p.9 LL 4-25, p.10

LL 2-9.

Footnote 38: Caroline A.'s. Transcript [50 Hearing] Exhibit "E" p.25 LL 22-25, p.26 LL 2-13. Caroline A.'s. Transcript Exhibit "F" p.37 LL 21-24, Norman's Transcript Exhibit "K", p.24 LL 10-25, p.25 LL 2-25.

Footnote 39: Plaintiffs Exhibit "S".

Footnote 40: id.

Footnote 41: id.

Footnote 42: Plaintiffs Exhibit "T".

Footnote 43: Plaintiffs Exhibit "S", ¶ 2 P. 2 Records Reviewed by Plaintiffs' Expert, (1)Undated letter to tenants regarding inoperative portions of the intercom system from the Housing Authority.(2) Correspondence between Gilston Electrical, Verizon, and the Housing Authority, dated 3/20/2001, 2/17/2000, 10/19/2000, 11/18/1998 and 5/10/99. (3) Transcript; Deposition of Kevin Norman, April 29, 2004. (4) Responses to plaintiff's combined demands: Photos (26) - front door, lobby, roof and intercom box; Major Incident Report Housing Authority, 1/24/01, Wednesday, 1704 hours, 695 E. 163rd Street, roof-rape, Caroline A. (5) Verified Bill of Particulars. (6) Forest Houses Contractor Sign-in Log, 1/11/2000 - 1/24/2001. (7) Forest Houses Master Key and Tool Control Record 1/3/2000-1/24/2001. (8) Forest Houses main/rear door Daily Inspection Sheet [checking door but not intercom], 1/6/01-1/24/01, with missing entries. (9) Forest Houses Work Tickets. (10) Caretakers Logbook 1/24/00-1/24/00.