On May 20, 2004, Plaintiff, who was visiting his mother at 303 Vernon Avenue, allegedly sustained personal injuries when he was assaulted by an unidentified tenant in the public vestibule of the building. Plaintiff commenced the instant action against NYCHA and the City of New York on theories of negligent premises security and violation of Real Property Law § 231(2).

NYCHA's Motion for Summary Judgment

NYCHA contends that it is entitled to summary judgment dismissing Plaintiff's claim of negligent premises security because Plaintiff's assailant was a tenant at 303 Vernon Avenue and the attack occurred in the public vestibule area. In support of its motion, NYCHA submits, among other things, Plaintiff's Bill of Particulars in which Plaintiff alleges that his assailant was a tenant of the building. NYCHA also proffers the transcripts of Plaintiff's testimony at a hearing pursuant to General Municipal Law § 50-h and at his examination before trial, to the effect that Plaintiff's assailant was a tenant and that the attack occurred in the vestibule of the building, which was open to the public. [*2]

"It is well established that a landlord's duty to maintain his property in a safe condition includes the taking of minimal precautions to protect against the reasonably foreseeable criminal acts of third persons." (Maria S. v Willow Enterprises, Inc., 234 AD2d 166, 178 [1st Dept. 1996].) This duty of care applies to government entities acting in their proprietary capacity as landlords. (See Venetal v City of New York, 21 AD3d 1087, 1088 [2d Dept 2005].) The duty extends not only to the tenants of the premises, but also to their guests. (See Novikova v Greenbriar Owners Corp., 258 AD2d 149, 151 [2d Dept 1999].)

"In premises security cases particularly, the necessary causal link between a landlord's culpable failure to provide adequate security and a tenant's injuries resulting from a criminal attack in the building can be established only if the assailant gained access to the premises through a negligently maintained entrance." (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 [1998].) As such, Plaintiff may recover only if the assailant was an intruder. (See id.; Provenzano v Roslyn Gardens Tenants Corp., 190 AD3d 718, 719 [2d Dept 1993] [summary judgment granted where assailant was a house guest of a resident]; Carmen P. v PS&S Realty Corp., 259 AD2d 386, 388 [1st Dept 1999] [in a negligent security claim, Plaintiff must "present evidence from which intruder status may reasonably be inferred"]; see also Venetal v City of New York, 21 AD3d 1087 at 1089-90.)

Moreover, it has been held that a landlord has no duty to an injured plaintiff where the crime at issue occurs in an outdoor common area, or an area that is necessarily accessible to the public, such as an entrance vestibule. (See Novikova v Greenbriar Owners Corp., 258 AD2d at 155; Concepcion v NYCHA, 207 AD2d 857, 857 [2d Dept 1994].)

NYCHA, therefore, has established prima facie its entitlement to judgment as a matter of law on Plaintiff's negligent premises security claim. In opposition, Plaintiff does not dispute that his assailant was a tenant of the building or that the alleged criminal act occurred in a public entrance vestibule. Accordingly, that branch of NYCHA's motion seeking dismissal of Plaintiff's claim insofar as it alleges negligent premises security must be granted.

NYCHA also contends that it is entitled to summary judgment dismissing Plaintiff's claim under Real Property Law § 231(2), which "imposes joint and several liability on a property owner who knowingly leases or gives possession of property to a tenant to use the premises unlawfully, or permits such unlawful use." (See Maria S. v Willow Enterprises Inc., 234 AD2d at 178.) "A cause of action is stated if plaintiff alleges that the landlord was given notice of persistent criminal activity on the premises creating the likelihood of injury to others and further demonstrates a causal relationship between the complained-of-activities and plaintiff's injuries." (Luisa R. v City of New York, 253 AD2d 196, 202 [1st Dept 1999].) The statute is not limited "to mandating the removal only of identified tenants or other identified occupants." (Id. [emphasis in original].)

In support of its motion, NYCHA proffers the affidavit of its current employee Winnifred Quinton and the deposition testimony transcript of its former employee Pradip Singh. As will be demonstrated, Mr. Quinton's affidavit lacks foundational support and is without any probative [*3]value. Mr. Singh's testimony does not help NYCHA, in that it demonstrates that NYCHA had received complaints of criminal activity on the premises and did nothing to stop it.

In his affidavit, Mr. Quinton avers that he is currently the Development Manager of the NYCHA Sumner Houses Development, which includes the subject building at 303 Vernon Avenue. Mr. Quinton avers that it is NYCHA's business practice to enter all maintenance and repair issues into a computerized work ticket system, and that no entries exist regarding the vestibule area of the subject building. Mr. Quinton also avers that he searched for records of assaults in the front vestibule area of the subject building between the dates of May 20, 2003 and May 20, 2004, and that there was no record of an assault in the vestibule during that period.

Although Mr. Quinton is currently the Development Manager, he does not make any statement regarding his familiarity with NYCHA's record-keeping practices during the relevant time period in 2003 and 2004. Mr. Quinton's affidavit does not state whether NYCHA ever kept records of assaults in the normal and regular course of business during the relevant time period, nor any other facts that would allow an inference that the absence of a record of an assault would indicate the absence of a report of an assault. Since Mr. Quinton's affidavit lacks any foundational support, it is without any probative value. (Cf. Carrion v McNally & McNally, 18 AD3d 212, 212 [1st Dept 2005].)

NYCHA also submits the deposition testimony transcript of its former employee Pradip Singh, who was a Housing Assistant for the subject building from September 8, 2003 through December 9, 2004. As part of his duties, he would handle tenant complaints, and go to court for nonpayment or any type of evictions. Mr. Singh testified that, whenever he received a tenant complaint, he would make a notation in the tenant's folder, and would mention such complaint to management. Also as part of his duties, he would conduct inspections of the exterior of the premises.

When asked whether he had knowledge of any kind of history of violent crime in front of the building, Mr. Singh testified that he believed that there had been a shooting incident in 2004. He testified that he learned about the shooting incident when a tenant complained about it. He then noted the complaint in an interview record. He testified that in response to the complaint, management did "nothing, because they are non-tenants." Mr. Singh also testified that Plaintiff's mother, Ms. Belnavis, spoke with him prior to the subject assault regarding her request to transfer to another building.

Mr. Singh testified further that, prior to Plaintiff's assault on May 20, 2004, he observed groups of tenants hanging outside the building, although he never witnessed people selling any drugs. Significantly, Mr. Singh admitted that tenants called him to complain that people were selling drugs in the building. Between January and the date of the incident, Mr. Singh estimated that he received less than 10 such complaints regarding drug activities. He told the tenants who complained that they should call the police and file a report. Mr. Singh testified that he had no personal awareness regarding any threats made towards Plaintiff in 2003 or 2004. [*4]

In Beatty v NAACP (194 AD2d 361, 364 [1st Dept. 1993]) and Simmons v City of New York (168 AD2d 230, 230 [1st Dept 1990]), the First Department held that, where it is alleged that a landlord was repeatedly given notice that there was criminal activity on the premises and took no action to stop it, it is a question for the jury whether the landlord's failure to act may serve as a predicate for liability for the tortious acts connected with the illegal activity. The Simmons case does not make any distinction in the application of said principle to a common-law claim for failure to maintain minimal security precautions and a statutory claim under Real Property Law § 231(2).

The Court is aware that Simmons cites Muniz v Flohern (155 AD2d 172 [1st Dept. 1990]), which was reversed by the Court of Appeals. (See Muniz v Flohern, 77 NY2d 869 [1991].) In Muniz, the infant plaintiff was injured by bullet pellets while passing a store during an attempted robbery of the store. (See id., at 870.) Plaintiffs alleged that the store owner was aware that the store tenant was engaging in illicit drug activities, and that the owner failed to make an attempt to stop it. The Court of Appeals held, among other things, that the infant plaintiff's injuries did not result from the unlawful use of the premises, namely the drug activities. (See id.) The Court of Appeals noted that there was no relationship between the robbery and the illicit drug activity. (See id.)

The Beatty case, which was decided after the Court of Appeals's decision in Muniz, implicitly recognizes that Muniz did not disturb the principle that, where it is alleged that a landlord was repeatedly given notice that there was criminal activity on the premises and took no action to stop it, it is a question for the jury whether the landlord's failure to act may serve as a predicate for liability for the tortious acts connected with the illegal activity. (See Beatty v NAACP, 194 AD2d at 364.)

Regardless, NYCHA failed to establish that Plaintiff's injuries were not related to the complained-of unlawful activities, including the shooting outside the premises, Ms. Belnavis's complaints in relation to her request to be transferred, and the complaints regarding drug activity on the premises. Mr. Singh's testimony failed to show that NYCHA did not have notice of persistent criminal activity on the premises, and failed to show that such criminal activity did not create the likelihood of injury to others. NYCHA, therefore, has failed to demonstrate prima facie entitlement to summary judgment dismissing that branch of Plaintiff's complaint alleging a violation of Real Property Law § 231(2).

In any event, in opposition to NYCHA's motion, Plaintiff's evidence was sufficient to raise a triable issue, and defeat summary judgment. Plaintiff submits the deposition transcript and affidavit of Plaintiff's mother, Marlene Belnavis, who was a tenant in the subject building. Ms. Belnavis avers that she first complained to NYCHA about criminal activities within the premises on January 13, 2003, when she requested to be transferred out of the building. Ms. Belnavis attaches a copy of a written complaint to her affidavit. According to Ms. Belnavis's written complaint to NYCHA, Plaintiff, who was living with her on the premises, had been threatened by a group of young men outside the premises after he had asked that they "lower the noise" outside their apartment. The group of men told Plaintiff that "you and your mother is [*5]going to be clapped, which in street talk means gun down [sic]."

Ms. Belnavis's written complaint to NYCHA also states that on January 6, 2003 Plaintiff was approached by one of the men and was punched and threatened again. In her affidavit, Ms. Belnavis avers that she witnessed the same young men selling drugs and gambling in the vestibule, lobby, hallways, and stairwells of the building up until the time of the subject assault of the Plaintiff on May 20, 2004. In her deposition testimony and in her affidavit, Ms. Belnavis states that she made numerous verbal complaints to Ms. Ahazie, who worked in the NYCHA management office, regarding the alleged persistent criminal activity occurring on the premises.

Plaintiff has sufficiently demonstrated the existence of a triable issue as to whether NYCHA was given notice of persistent criminal activity on the premises. Ms. Belnavis's testimony and affidavit, along with Plaintiff's 50-h and deposition testimony concerning the threats and subsequent assault, sufficiently create an issue of fact as to whether Plaintiff's assault was in retaliation for complaining to the assailants, the police, and NYCHA about the criminal conduct on the premises. As such, Plaintiff has sufficiently demonstrated that there exists at least a triable issue of fact as to whether Plaintiff's assault was a result of the ongoing criminal activity on the premises.

It should be noted that some of the contentions made by NYCHA blur the distinction between a common-law negligent premises security claim and a claim under Real Property Law § 231(2). For example, NYCHA contends that it is entitled to summary judgment under Real Property Law § 231(2) since Plaintiff's injuries arose from a "targeted" attack. In this regard, NYCHA cites Flores v Dearborne Management (24 AD3d 101 [1st Dept 2005]), Harris v NYCHA (211 AD2d 616 [2d Dept 1995]), Tarter v Schildkraut (151 AD2d 414 [1st Dept 1989]), Ianelli v Powers (114 AD2d 157 [2d Dept 1986]), and Snipe v Hennie (11 Misc 3d 1075[A] [Civ Ct Kings County 2006]). However, none of these cases involve a claim under Real Property Law § 231(2), but rather only involve common-law claims for negligent premises security.

In all of the cases relied upon by NYCHA, it was held that the assailant's intentional conduct was the sole proximate cause of the plaintiff's injuries. The assailant's intentional conduct severed the causal nexus between the alleged failure to take minimum security measures and the plaintiff's injuries. The defendants were relieved of liability because they could not have reasonably foreseen the assailant's intentional unlawful conduct, so as to give rise to a corresponding duty on their part to adopt security measures. (See Iannelli v Powers, 114 AD2d at 162).

In the instant case, the Court need not address whether the assailant's alleged conduct would have severed the causal nexus between NYCHA's alleged failure to take minimum security measures and Plaintiff's injuries. NYCHA has already been granted summary judgment dismissing the common-law negligence claim based on the undisputed facts that the assailant was a tenant in the building and that the subject attack occurred in a public vestibule.

In actions asserting liability under Real Property Law § 231(2), the fact that an assailant [*6]may have planned, targeted, or designed an attack against a plaintiff does not relieve the defendant landlord of liability. Plaintiff need only demonstrate that the landlord was given notice of persistent criminal activity on the premises creating the likelihood of injury to others, and further demonstrate a causal relationship between the complained-of-activities and Plaintiff's injuries. (See Luisa R. v City of New York, 253 AD2d at 202.)

Under the statute, if a landlord is aware that an assailant assaulted a plaintiff on a prior occasion, such awareness may be evidence that the landlord was given notice of persistent criminal activity. For example, in the instant case, Plaintiff's and Ms. Belnavis's testimony that Plaintiff had been assaulted and threatened by the assailant in 2003, and that Ms. Belnavis complained to NYCHA about the assailant and others, may be some evidence that NYCHA was given notice of persistent criminal activity on the premises for purposes of Real Property Law § 231(2). The 2003 attack may be evidence of the likelihood of injury to Plaintiff and others after the 2003 attack, and may demonstrate the necessary causal relationship. The fact that the conduct on both occasions was intentional arguably provides weightier evidence of a likelihood of injury and causal connection than had the conduct been unintentional.

Accordingly, that branch of NYCHA's motion for summary judgment seeking dismissal of Plaintiff's Complaint insofar as it alleges a violation of Real Property Law § 231(2) is denied.

The City's Cross-Motion for Dismissal under CPLR 3211(a)(7), CPLR 3211(c), and CPLR 3212

Plaintiff filed the Note of Issue on July 12, 2006. Non-party Marlene Belnavis appeared for a deposition on September 7, 2006. The City filed the instant motion on January 24, 2007.

"[A] party moving for summary judgment outside the statutory (CPLR 3212[a]) or court-imposed time limit must show good cause for the delay." (Pena v Women's Outreach Network, Inc., 35 AD3d 104, 108 [1st Dept 2006]; see also Brill v City of New York, 2 NY3d 648, 652 [2004].) Good cause may be shown by demonstrating that there was significant outstanding discovery at the time of the filing of the note of issue. (See Pena v Women's Outreach Network, Inc., 35 AD3d at 108; Herrera v Felice Realty Corp., 22 AD3d 723, 724 [2nd Dept 2005].)

Here, the City fails to submit any reason for failing to bring its summary judgment motion within 120 days after the filing of the Note of Issue. The fact that Ms. Belnavis's non-party deposition occurred after the filing of the Note of Issue does not excuse the City for failing to bring the summary judgment motion for more than 120 days after the completion of the deposition.

Accordingly, that branch of the City's motion for an order, pursuant to CPLR 3212, is denied as untimely.

The City also moves for an order, pursuant to CPLR 3211(c) and CPLR 3211(a)(7), dismissing Plaintiff's Complaint. Unlike CPLR 3212, a motion to dismiss pursuant to CPLR [*7]3211 does not generally have a 120-day deadline. (See, e.g., Santana v City of New York, 6 Misc 3d 642, 643 [Civ Ct, New York County 2004].)

This Court holds, however, that a motion to dismiss made pursuant to CPLR 3211(c) is untimely if it is made outside the statutory CPLR 3212(a) or court-imposed time limit without a demonstration of good cause for the delay. By its own terms, CPLR 3211(c) permits the court to treat a CPLR 3211 motion as one for summary judgment upon notice to the parties. To hold that a CPLR 3211(c) motion may be made beyond 120 days would defeat the purpose of CPLR 3212(a), and would undermine the Court of Appeals's holding in Brill v City of New York (2 NY3d 648). (See 166 Siegel's Practice Review 1, Can a Motion to Dismiss Under CPLR 3211 Circumvent the Time Limit of the Motion for Summary Judgment Under CPLR 3212? [Oct. 2005].) Accordingly, that branch of the City's motion for dismissal pursuant to CPLR 3211(c) is also denied as untimely.

The City's motion pursuant to CPLR 3211(a)(7) for failure to state a cause of action is not subject to the 120-day rule. (See Santana v City of New York, 6 Misc 3d at 643.) "On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true, and according the plaintiff the benefit of every possible inference." (See Gallagher v Kucker & Bruh, 34 AD3d 419, 419 [2d Dept 2006].) Plaintiff's pleadings, including the Complaint and Bill of Particulars, allege, among other things, that the City was negligent in its ownership, operation, management, control, and maintenance of 303 Vernon Avenue. Essentially, Plaintiff alleges a negligent premises security cause of action and cause of action for a violation of Real Property Law § 231(2) against the City.

In its motion, the City contends that Plaintiff failed to plead the existence of a special relationship. (See, e.g., McPherson v NYCHA, 228 AD2d 654, 655 [2d Dept 1996].) "For liability to be imposed upon a governmental defendant for the breach of a duty which is governmental in nature, such as providing police protection and adequate security, a plaintiff tenant must show that the defendant breached a special duty to him or her." (Id.)

Plaintiff's pleadings do not plead a breach of a duty which is governmental in nature. Rather, Plaintiff's pleadings appear to allege that the City was acting in a non-governmental capacity with respect to the subject premises. Where the City acts "in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord." (See Miller v State, 62 NY2d 506, 511 [1984]; see also Price v NYCHA, 92 NY2d 553, 557 [1998].) The City makes no showing that it has no "proprietary" relationship to the premises a showing that would, in any event, be more appropriate on summary judgment. As such, accepting all the facts alleged in Plaintiff's pleadings as true, and according Plaintiff the benefit of every possible inference, Plaintiff sufficiently states valid causes of action against the City for negligent premises security and under Real Property Law § 231(2).

Accordingly, that branch of the City's motion for an order, pursuant to CPLR 3211(a)(7), dismissing Plaintiff's Complaint, is denied. [*8]

In sum, defendant NYCHA's motion for summary judgment is granted to the extent that Plaintiff's common-law negligence claim, alleging that NYCHA failed to provide minimum security measures, is dismissed, and is denied with respect to Plaintiff's statutory cause of action under Real Property Law § 231(2). The City's motion, pursuant to CPLR 3211 and CPLR 3212, is denied in its entirety.

April 4, 2007

__________________

Jack M. Battaglia

Justice, Supreme Court