Clarke v City of New York (2009 NY Slip Op 09398)

Clarke v City of New York

2009 NY Slip Op 09398 [68 AD3d 579]

December 17, 2009

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 10, 2010

Chrishema Clarke, an Infant, by Her Mother and Natural Guardian, Terri Thompson-Gomillion, et al., Respondents,
v
City of New York et al., Defendants, and New York City Housing Authority, Appellant.

—[*1] Cullen and Dykman, LLP, Brooklyn (Joseph Miller of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondents.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered February 24, 2009, which denied defendant New York City Housing Authority's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Factual issues whether the infant plaintiff's assailant was an intruder who entered the building through a negligently maintained door or possessed a key to the building or was an invited guest of building residents preclude summary judgment (see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550-551 [1998]; Miller v State of New York, 62 NY2d 506, 508-509 [1984]). Concur—Tom, J.P., Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.