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Appellate Division, Second Department Affirms and Clarifies Landlord Liability for Assaults committed by Third-Parties

March 1, 2017 • Posted By Douglas R. Rosenzweig • Insurance Coverage

In Ramos v. New York City Housing Authority, (2015-06998),  __ A.D.3d __ (2nd Dept. 2017), the Appellate Division, Second Department recently affirmed a denial of Summary Judgment to the New York City Housing Authority (“NYCHA”).  NYCHA sought dismissal of plaintiff’s assault claim on the grounds that plaintiff was unable to prove that its alleged negligence in failing to provide a properly locking front door at the premises was a proximate cause of her injuries. 

 Justices Mastro, Austin, Miller and Maltese reiterated the long standing rule that recovery against a landlord for an assault committed by a third-party requires a showing that the landlord’s negligent failure to provide adequate security was a proximate cause of the injury.  Burgos v. Aqueduct Realty Corp., 92 NY2d 544 (1998).  More specifically, the Court held that a landlord can only be held liable for inadequate security and a tenant’s injuries resulting from a criminal attack where the assailant gained access to the premises through a negligently maintained entrance.  In other words, the assailant cannot have been a tenant of the building or otherwise accessed the building in a lawful manner.

The Court ruled that there was a question of fact as to whether the front door of the NYCHA owned building was operating properly and failed to establish whether the assailant was an intruder or lawfully in the building.  As such, NYCHA’s motion was denied.

In summary, when a Landlord is faced with an assault case due to allegedly improper security, a key factor will be the identification of the assailant.   Every effort should be made to identify the assailant and whether he gained access to the building lawfully.  If such can be proven, plaintiff’s complaint is likely to be dismissed.  Note that a plaintiff who sues a landlord for negligent failure to take minimal precautions to protect tenants from harm can satisfy the proximate cause burden at trial even where the assailant remains unidentified, if the evidence renders it more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance.  See Burgos at 548.