Ortiz v Wiis Realty Corp.

Ortiz v Wiis Realty Corp. 2009 NY Slip Op 07162 [66 AD3d 429] October 6, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

Jose Ortiz, Respondent,
v
Wiis Realty Corp., Appellant.

—[*1] Kaufman Borgeest & Ryan LLP, New York (Jacqueline Mandell and Dennis J. Dozis of counsel), for appellant.

Steven Wildstein, Great Neck, for respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 14, 2008, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant met its burden on summary judgment with a prima facie showing establishing as a matter of law that the criminal assault upon plaintiff by an unknown assailant was unforeseeable, i.e., not reasonably predictable (see Maria T. v New York Holding Co. Assoc., 52 AD3d 356, 358 [2008], lv denied 11 NY3d 708 [2008]; Williams v Citibank, 247 AD2d 49, 53 [1998], lv denied 92 NY2d 815 [1998]). Plaintiff failed to come forth with competent evidence of past criminal activity of "the same or similar" type (Novikova v Greenbriar Owners Corp., 258 AD2d 149, 152-153 [1999]) at defendant's building, to raise a triable issue of fact with regard to foreseeability (see Maria T. at 359).

In light of our determination of nonforeseeability, we need not reach the remaining issues raised by the parties. Concur—Saxe, J.P., Sweeny, Acosta and Richter, JJ.