Plaintiff-landlord brings this action to recover for nonpayment of rent for a total of $4994.40, including attorney's fees in the amount of $500.00. Defendant-tenant counterclaims for the return of his security deposit in the amount of $898.88.

The Defendant, a Caucasian male testified that he is from Rochester, New York; that he came to New York City for employment and first lived in Park Slope, Brooklyn, and that he moved to the Bronx because he was seeking a bigger apartment at an affordable rental rate; and, that he was not familiar with Bronx neighborhoods when he moved into the subject apartment. He also testified that he and his Asian wife lived in the subject premises without incident for approximately two years. He further testified that sometime in the Spring of 2008, he began being harassed by individuals in the neighborhood when he would come home from work between the hours of 11:00pm and 1:00am. He stated that these individuals would call him "cracker" and would tell him that he did not belong in the neighborhood. He stated that he was told that his "days were numbered", and that "we know where you live." Defendant never reported these incidents to the police.

Defendant's wife (herein after, "the wife"), testified that on January 12, 2009, at approximately 6:30pm, she was laying on her bed with her one-year-old child when she heard someone banging loudly on the door and manipulating the door knob. Through the peep hole she saw a male Hispanic wearing a red bandana, with long hair and a scar on his face. When the wife asked him what he wanted, the individual "mumbled a name" which the wife did not recognize. She answered that the person did not live there, then the individual allegedly asked for the defendant. She told him that he was not home and threatened to call the police, whereupon, the [*2]individual left. The wife testified that she immediately called the defendant and explained to him what had just occurred and insisted that he come home immediately. When the defendant arrived in the house, the wife told him that she was terrified for her and her child's life and that she could no longer live in that apartment. This incident was not reported to the police.

The defendant and the wife both testified that the entrance door to the building was very frequently unlocked, as was a door leading to the basement, which also provided easy access to the building. The defendant testified that this caused him to feel as if he was unable to seek refuge in his building from "the element" outside.

Immediately after the incident which the wife experienced, the defendant began efforts to terminate his lease. He called Bob Wisgo, the property manager for the premises, who allegedly told him to talk to Lisa, the person responsible for leasing. Defendant claims that Lisa told him to put his request in writing, which defendant did. In his letter notarized January 17, 2009, and addressed to Mr. Wisgo, defendant stated that he was requesting early termination of the lease because, "our lives are in danger and I will not stay in the Bronx any longer." He informs Mr. Wisgo that "We will be moving as soon as we find a place to live." The letter was not answered and defendant did not obtain permission from the landlord to terminate the lease prior to its expiration. He and his family moved out of the premises on January 31, 2009. The defendant and his family did not experience any further problems with anyone in the neighborhood from the date of the wife's incident on January 12, until they moved out of the subject apartment. The defendant sought an apartment next to a police station because, as the defendant testified, "I am terrified."; he found one in Queens.

Mr. Wisgo and Jyaquin Salcedo, the superintendent of the building for 18 years, testified for the plaintiff. They both stated that the building's front door and the gate leading to the basement were usually locked, except for those few times when other residents would leave them open; and, that security in the building was not unusually lax, indeed, other than defendant's complaints, they were not receiving complaints from anyone about the building's security.

The testimony adduced at the trial, as well as the demeanor of the defendant and his wife, have caused the court to conclude that this is a case of two individuals who are afraid of living in certain communities in this city and who feel that their landlord owes them a duty to protect them in their residence, from the dangers of the neighborhood. No such duty exists, indeed, a landlord is not an insurer of tenant safety (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 429 N.Y.S. 2d 606, 407 N.E.2d 451[Ct. of App., 1980]; Raghu v 24 Realty Co., 7 AD3d 455, 777 N.Y.S.2d 487 [App. Div. 1st Dept., 2004]; Cook v New York City Hous. Auth., 248 AD2d 501, 670 N.Y.S.2d 51 [App. Div. 2d Dept., 1998]).

A landlord has a common law duty to take minimal security precautions to protect tenants and members of the public from the foreseeable criminal acts of third persons (Burgos v. Aqueduct Realty, 92 NY2d 544, 684 N.Y.S.2d 139, 706 N.E.2d 1163 [Ct. of App., 1998]; Jacqueline S. v. City of New York, 81 NY2d 288, 598 N.Y.S.2d 160, 614 N.E.2d 723 [Ct. Of App. 1993]; Wayburn v. Madison Land Ltd. Partnership, 282 AD2d 301, 724 N.Y.S.2d 34 [App. Div. 1st Dept. 2001]). However, the criminal activity must be foreseeable; the landlord must know, or have reason to know that third parties may endanger the safety of tenants or persons lawfully on the premises (Nallan v. Helmsley Spear, Inc., supra., Wayburn v. Madison Land Limited Partnership, supra). [*3]

There was no testimony here regarding any past criminal activity in the building or the surrounding community which would trigger for the landlord, the common law duty to protect the defendant and his family (see, Jacqueline S. v. City of New York, supra).

The Multiple Dwelling Law (Mult Dwell L § 50-a(3)) mandates the installation of self- closing, self-locking doors in buildings constructed prior to 1968, under certain circumstances. There was testimony that the subject apartment building did have self-closing, self-locking doors; they apparently were not always locked, but the testimony was that it was the tenants who would leave the doors open.

Accordingly, the court grants judgment for the plaintiff in the amount of $4994.40, and defendant's counterclaim is dismissed.

Dated: June 13, 2011____________________________Hon. Ruben Franco, JCC