Decided April 15, 2008.
MADELINE LEE BRYER, P.C., By: Madeline Lee Bryer, Esq., Jonathan I. Edelstein, Esq., New York, New York, for Plaintiff.
WILSON, ELSER, MOSKOWITZ, EDELMAN DICKER, LLP, By: Deborah Meyer, Esq., New York, New York, for Defendants.
Pursuant to CPLR 3212, defendants/third-party plaintiffs Whitehall Apartments Co., LLC and Carl D. Silverman move for summary judgment dismissing the complaint. Ruth Benitez, a minor, by Encarnacion Maldonado as Guardian Ad Litem, cross-moves for summary judgment in her favor on defendants' second through fifth and seventh through ninth affirmative defenses.
At issue is whether the landlord voluntarily assumed a duty to monitor the screens of an installed security camera system and to maintain the system in working order, and whether the landlord caused tenant, a victim of a sexual assault in an elevator, to rely on the landlord's surveillance.
On April 18, 2003, Benitez was allegedly accosted and sexually assaulted by a male assailant in a passenger elevator in a building located at 80-50 Baxter Avenue in Queens County. The assailant was later identified as third-party defendant Jimmy Avila. At the time of the incident, Benitez was 13 years old. The subject premises is a six-story residential multiple dwelling, where Benitez and her parents had resided since 1996.
In her complaint, Benitez asserts three negligence claims against Whitehall and Silverman, the owner and managing agent of the subject premises.
Whitehall and Silverman move for summary judgment dismissing the complaint, contending that Benitez cannot establish a prima facie case of negligence against them. Defendants rely on Benitez's deposition testimony to demonstrate that they met their duty to provide minimal security, in that the front door locks at the premises were undisputedly operational and worked on the date of the within incident, and that Avila was able to gain access into the building by entering with Benitez. Benitez opposes summary judgment, arguing that defendants' arguments focus solely on whether the assailant entered the building through an unsecured front entrance, which is the subject of her first and second causes of action, and they do not address her third cause of action, i.e., that defendants breached their voluntarily assumed duty to maintain and monitor the security cameras installed in the elevator, in the lobby and the public hallway of each floor. With respect to her third cause of action, Benitez contends that a question of fact exists as to whether defendants breached this voluntarily assumed duty. Benitez maintains that the building superintendent made certain representations that the premises were being monitored by security cameras, a representation she claims she then relied on.
In reply, defendants allege that Benitez fails to show that defendants voluntarily assumed a duty to increase security beyond a locked front entrance, and that her only evidence of reliance is based on hearsay. Defendants also contend that Benitez fails to prove that her assault was foreseeable.
This Court permitted sur-replies by the parties, in which they essentially reiterate their arguments.
In order to prove a prima facie case of negligence, a plaintiff must establish: (1) the existence of a duty on the part of the defendant to the plaintiff, (2) a breach of that duty, and (3) injury suffered by the plaintiff as a result of the breach ( Solomon v City of New York, 66 NY2d 1026 (1985). It is well established that a landlord is not the insurer of the safety of its tenants ( see Nallan v Helmsley- Spear, Inc., 50 NY2d 507; see also Leyva v Riverbay Corp., 206 AD2d 150 [1st Dept 1994]). However, a landowner has a duty to exercise reasonable care in maintaining its property in a reasonably safe condition ( Basso v Miller, 40 NY2d 233; Fontanez v New York City Hous. Auth., 224 AD2d 372 [1st Dept 1996]). This duty includes the obligation to take minimal precautions to protect tenants and their guests from reasonably foreseeable criminal acts ( see Miller v State of New York, 62 NY2d 506; Tarter v Schildkraut, 151 AD2d 414 [1st Dept], denied 74 NY2d 616). "The law does not require [a landlord] to provide the optimal or most advanced security system available, but only reasonable security measures" ( Tarter, 151 AD2d at 415). Locks for the entrances of buildings are considered the "most rudimentary security" that may be provided by a landlord ( Jacqueline S. v City of New York, 81 NY2d 288, 295).
Here, defendants refer to excerpts from Benitez's deposition, in which she testified that, when she arrived at the front entrance, she buzzed her apartment and received no answer (Meyer Affirm., Ex D [Benitez EBT], at 46); that the assailant buzzed another apartment ( id. at 47); that Benitez heard someone buzzing them in ( id.); that the buzz unlocked the locked door ( id. at 63-64); and that they both went through the locked door leading into the lobby ( id.). By showing, through Benitez's own testimony, that the interior door to the building's lobby was locked, and that the lock was operational on the day of the incident, defendants demonstrate that they satisfied their duty to provide operational locks for the entrance of the premises ( see Tarter v Schildkraut, 151 AD2d 414, supra).
Moreover, because Benitez's testimony establishes that the assailant walked through the front entrance with Benitez, having apparently been buzzed in by another unidentified tenant, she is unable to demonstrate either that the assailant "was an intruder who gained access to the premises through a negligently maintained entrance" ( see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 551), or that the existence of a negligently maintained front door lock proximately caused the subject incident ( id.). Therefore, as to the locked entrance door and buzzer system, defendants make a prima facie showing that they provided a functioning security system, and that they did not breach their duty to provide minimal security measures for the premises as alleged in the first and second causes of action ( see Tarter v Schildkraut, 151 AD2d 414, supra).
Once a prima facie showing has been made, the burden then shifts to the opposing party, who must proffer evidence in admissible form establishing that an issue of fact exists, warranting a trial of the action ( Alvarez v Prospect Hosp., 68 NY2d 320).
In her opposition papers, Benitez does not challenge defendants' proffered evidence demonstrating that they maintained a secured front entrance, and concedes that such evidence relates to her first and second causes of action, which allege that defendants were negligent based on an allegedly non-functioning front entrance. In view of Benitez's failure to submit any evidence establishing an issue of fact as to her first and second causes of action, these two causes of action are dismissed.
The second cause of action complains of defendants' alleged violations of New York State Multiple Dwelling Law § 50-a (1) and Administrative Code of the City of New York, which mandate the maintenance of secured main entrances to multiple dwelling buildings.
As to the third cause of action, the complaint alleges that the security camera in the passenger elevator was not functioning, due to defendants' alleged negligence. Defendants do not dispute that there were security cameras installed throughout the building, including the only elevator in the building, and that they were connected to a monitor and recording device. Defendants' witness, Susan Sahim, testified that security cameras had been installed in 2000 in the lobby, the public hallway of each floor, and in the elevator ( see Bryer Opp. Affirm., Ex A [Sahim EBT], at 38-39, 54-55). According to Sahim, a camera was installed in the elevator to discover who was vandalizing the elevator panel in the elevator, which was new at the time ( id. at 39-40); that the camera in the elevator was present on the date of the incident ( id. at 41); and that the cameras were hooked up to a monitor and a recording device ( id. at 42-43, 55). Defendants argue that they had no duty to provide monitored security cameras, insofar as they contend that Benitez's assault was not foreseeable.
An owner's common-law duty to provide security to its tenants "rests upon the foreseeability of the particular danger which proximately causes the harm'" [citations omitted] ( see Jacqueline S., 81 NY2d at 292). The landlord's liability can arise only where the owner knew or should have known from "past experience" of the probability of conduct on the part of third persons which could endanger the safety of those lawfully on the premises ( see id. at 294, quoting Nallan, 50 NY2d at 519).
Whether knowledge of criminal activities occurring in the specific building can be sufficient to make injury to a tenant foreseeable "must depend on the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question" ( Jacqueline S., 81 NY2d at 295). To demonstrate foreseeability of the subject incident, Benitez is required to present proof that "the criminal conduct at issue was reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location'" ( Johnson v City of New York , 7 AD3d 577 , 578 [2d Dept], lv denied 4 NY3d 702, quoting Novikova v Greenbriar Owners Corp., 258 AD2d 149, 153 [2d Dept 1999]).
Here, Benitez submits three criminal complaints prepared by the New York City Police Department as to: (1) a 2002 robbery that did not occur at the subject premises, but on "82nd Street Baxter Avenue," allegedly three blocks away ( see Bryer Opp. Affirm., Ex C [redacted copy of Police Complaint 2002-110-04022]; see also Meyer Reply Affirm., Ex H [unredacted copy of the same Police Complaint]); (2) a 1996 burglary that occurred at the subject premises ( see Bryer Opp. Affirm., Ex C [redacted copy of Police Complaint No. 1996-110-013935]); (3) an assault that took place at the premises in 1999 (the 1999 Complaint) ( see Bryer Opp. Affirm., Ex C).
Defendants argue that the 1999 Complaint should not be considered by this Court, because the records concerning this incident were sealed, pursuant to Criminal Procedure Law (CPL) § 160.50. CPL § 160.50 (1) provides that upon termination of a criminal action or proceeding in favor of the accused, "the records of such action or proceeding shall be sealed" by the Clerk of the Court. "The sealing requirement was designed to lessen the adverse consequences [on the accused] of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused'" ( Matter of Katherine B. v Cataldo , 5 NY3d 196 , 202, quoting Matter of Harper v Angiolillo, 89 NY2d 761, 766). The purpose of this statute was not to create a constitutionally derived right assertable by strangers to the criminal case, but instead to "ensure that the protections provided be consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law'" ( People v Patterson, 78 NY2d 711, 716, quoting the Governor's Approval Mem, 1976 McKinney's Session Laws of NY, at 2451). "[T]he violation of a statute may warrant imposing the sanction of suppression [but] . . . only where a constitutionally protected right was implicated" ( id. at 717), and CPL § 160.50 did not create a "constitutionally derived right" ( id. at 716). Where the alleged violation of CPL § 160.50 has no bearing on the reliability of the identification process and no relevance to the determination of the accused's guilt at his trial, then the violation of the statute, without more, would not mandate the exclusion of the sealed information in subsequent independent and unrelated proceedings ( id.).
The 1999 Complaint indicates that the record of the 1999 assault at the premises contains sealed arrest information. However, the 1999 Complaint submitted was redacted to conceal information concerning the victim and the accused, and is merely proffered only to demonstrate the criminal activity in the neighborhood which is relevant to the issue of foreseeability. There is no basis to conclude that the 1999 Complaint implicates a constitutionally protected right of the accused, and no claim to the contrary has been raised. Thus, because the evidence obtained as the result of an apparent statutory violation by the police lacks constitutional implications, it is admissible ( see People v Torres, 291 AD2d 273 [1st Dept], lv denied 98 NY2d 681; see also People v Patterson, 78 NY2d 711, supra).
Although these complaints reflect only two isolated incidents that occurred at the premises in the seven-year period preceding the subject incident, this Court notes that the most recent took place approximately one year prior to the installation of the security cameras, which could be relevant to the issue of foreseeability of criminal activity and the defendants' decision to install the security camera system.
Benitez also submits three letters written by tenants of the building (the Infant Plaintiff's Exhibits D, letters from tenants of apartments 3A, 3J and 5J, respectively); and excerpts from the deposition taken of defendants' witness, Susan Sahim. The tenants' letters date from 1996, approximately four years prior to the installation of the security cameras. The tenant in apartment 3A states, inter alia, that "robery [ sic] very commun [ sic]", while the tenant of apartment 5J states, inter alia, that he "installed a burglary alarm. In here is very dangerous" (Bryer Opp. Affirm., Ex D [letters from tenants of apartments 3A 5J]). The third letter, by the tenant of apartment 3J, does not mention any knowledge of crimes in the subject premises. The statements made by the tenants, albeit unspecific, are relevant to what defendants knew or believed about prior criminal activity in the building in 1996, and to the decision to install security cameras in 2000. Furthermore, as noted by Benitez, Sahim acknowledged her awareness of an incident of burglary three years prior to the within incident (Sahim EBT, at 101).
The criminal activities are too remote temporally, spatially, and by nature to the sexual assault at issue so as to raise a triable issue of fact as to whether a sexual assault in the building by an intruder was foreseeable, so as to give rise to a duty that defendants owed to Benitez to provide and monitor security cameras in the building. That said, the defendants' and plaintiff's awareness of these criminal incidents may be relevant, for the reasons stated, supra, to the issues discussed in Part II.B., infra.
Even if the criminal activity in the neighborhood did not give rise to a duty upon defendants to install and monitor working security cameras, Benitez claims that defendants voluntarily assumed such a duty.
It is well established that a building owner may assume a duty to provide building security through the use of a security measure, other than a locked front entrance and intercom, even when there was no legal obligation in the first instance ( Nallan, 50 NY2d 507, supra). To impose liability on a landlord for an assumed obligation, Benitez must "show not only that [defendants] undertook to provide a service and did so negligently, but also that [their] conduct in undertaking the service somehow placed [her] in a more vulnerable position than [she] would have been in had [defendants] never taken any action at all" ( Nallan, 50 NY2d at 522). In other words, defendants could be liable under an assumed duty theory, if Benitez could show that she was "lulled into a false sense of security" by the expectation that the security cameras were monitored, and as a result, took fewer precautions when entering the building ( id. at 522). Thus, the element of reliance is crucial in defining the scope of the duty of a landlord to provide security services ( World Trade Knitting Mills v Lido Knitting Mills, 154 AD2d 99 [2d Dept 1990]).
To establish that defendants voluntarily assumed a duty to provide and monitor surveillance cameras, Benitez cites the deposition testimony of her mother, Felisa Gonzalez. Gonzalez, testified, through a Spanish interpreter, as follows:
"Q.How did you become aware that there was [ sic] security cameras in the building?
A.Mr. Martinez, the superintendent helper, I was told by them that they had seen me in the elevator, and I asked them how come. And they answered me there are cameras already, the building is now more secure. Do not worry anymore when you go down or go up to the roof. Now this is secure. There are surveillance, the camera's not alone.
Q.What do you mean the cameras are not alone.
A.That there was there was always one person there.
Q.When you say there was one person there, what do you mean by that?
A.That the monitor was always being watched, they were always watching what was going on."
(Bryer Opp. Affirm., Ex B [Gonzalez EBT,] at 12). She further testified that the superintendent also told her that there were cameras throughout the whole building and that the monitor was always watched ( id. at 56); that the superintendent showed her the monitor "the same time that [she] was told that there was security, that same day" ( id. at 12-13); and that, when the superintendent showed her the monitor, he told her that "there is a monitor which is being watched for the building security" by Eric, the superintendent's son, Mr. Martinez, and himself ( id. at 15-16). Additionally, Gonzalez testified that, when she saw the monitor, she was able to see pictures of different parts of the building, and that she understood that the monitor was taking pictures through cameras that were placed in different parts of the building ( id. at 55).
Liability under an assumed duty theory is viable if it was reasonably foreseeable that the plaintiff would rely on defendant's conduct, and tailor his or her own conduct accordingly ( see Nallan v Helmsley-Spear, Inc, 50 NY2d 507, supra; see also Heard v City of New York, 82 NY2d 66, supra). In cases dealing with the voluntary assumption of duty, foreseeability goes to the issue of the plaintiff's reliance ( see Heard v City of New York, 82 NY2d 66, supra; see also Nallan v Helmsley-Spear, Inc, 50 NY2d 507, supra). Thus, the issue is whether it was foreseeable that Benitez would rely on, or be lulled into, a false sense of security by the security arrangements of which she was aware, and the representations made by defendants' employees, and change her conduct as a result of that reliance ( see Nallan v Helmsley-Spear, Inc, 50 NY2d 507, supra; see also Saunders v Taylor, 6 Misc 3d 1015 [A] [Sup Ct, NY County 2003]). Reliance is generally an issue of fact.
Here, Benitez testified at her deposition that she felt safe about entering the premises by herself on the date of the incident, because she thought that the camera in the elevator was working; that she knew that someone was always watching the cameras; that, if she knew that the camera was not working, she would have told her mother to come home with her (Benitez EBT, at 9). Prior to the installation of the security cameras, Benitez claims that did not walk home alone or go in and out of the building by herself ( id. at 27).Benitez testified at her deposition that she was informed by her parents that there were cameras in the building and there was always somebody watching the monitor (Benitez EBT, at 23, 25, 26).
Defendants do not refute that their superintendent and his helper made the alleged statements to Gonzalez, and do not proffer an affidavit from these individuals challenging the veracity of Gonzalez's testimony. Rather, defendants argue that Benitez's reliance on information received from her parents that there was a camera in the elevator and someone would be watching is based on hearsay and could not defeat their motion for summary judgment.
"Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein" ( Gelpi v 37th Ave. Realty Corp., 281 AD2d 392 [2d Dept 2001]). "However, a statement which is not offered to establish the truth of the facts asserted therein is not hearsay" ( id.; see also DeLuca v Ricci, 194 AD2d 457 [1st Dept 1993]), as in the case where the statement is proffered as evidence to demonstrate that the statement was made ( DeLuca v Ricci, 194 AD2d 457, supra), or the witness's state of mind ( People v Machicote , 23 AD3d 264 [1st Dept 2005], lv denied 6 NY3d 777). Hearsay evidence may be sufficient to demonstrate the existence of a triable fact where it is not the only evidence submitted ( Navedo v 250 Willis Ave. Supermarket, 290 AD2d 246 [1st Dept 2002]).Benitez maintains that her reliance is not only based on the out-of-court statements allegedly made to her by her mother, Gonzalez, but also on her mother's personal observations of the monitor and the screen depicting the various portions of the building where the cameras had been installed. Furthermore, Benitez claims that her testimony as to her conversation with Gonzalez regarding the out-of-court statements is not being offered to prove the truth of the matter asserted therein ( Dawson v Raimon Realty Corp., 303 AD2d 708 [2d Dept 2003]), i.e., that the cameras were being monitored, but rather that these statements were made and relied on by Benitez. "Where the mere fact that a statement was made, as distinguished from its truth or falsity, is relevant upon trial, evidence that such statement was made is original evidence, not hearsay'" ( DeLuca v Ricci, 194 AD2d at 458, quoting Richardson on Evidence § 203 [Prince 10th ed]). If the trier of fact were to believe that the out-of-court statements were made, this could establish the element of reliance necessary to support Benitez's claim ( see Giardano v Beranbaum, 279 AD2d 282 [1st Dept 2001]).
This testimony may be proffered as evidence of Benitez's state of mind ( see People v Machicote , 23 AD3d 264 , supra; see also People v Starostin , 265 AD2d 267 [1st Dept 1999], lv denied 94 NY2d 885), to explain her actions based on such information ( see People v Machicote , 23 AD3d 264 , supra; see also Yee Sing Tung v Mon-Leang Mui, 260 AD2d 294 [1st Dept 1999). The fact that Benitez testified that her mother, Gonzalez, told her about statements made by a third party does not preclude such testimony from being considered when it is offered to show her state of mind ( see People v Starostin, 265 AD2d 267, supra). The trier of the facts is free to believe or disbelieve her claim that the out-of-court statements had been made, but that would be a question of credibility, not admissibility ( id.). Here, Benitez's mother could testify to the out-of-court statements allegedly made by the superintendent and his helper ( Stern v Waldbaum, Inc., 234 AD2d 534 [2d Dept 1996]; see also Gelpi v 37th Ave. Realty Corp., 281 AD2d 392, supra), because anyone who heard an out-of-court utterance which is offered merely to prove that it was made may testify to it, and have her veracity tested upon cross examination in the ordinary way ( Stern v Waldbaum, Inc., 234 AD2d 534, supra). Conversely, the superintendent and helper may also testify at trial.
Moreover, even if all or part of the superintendent's statement is viewed as hearsay, the superintendent's statement may be admissible as a party admission made by an agent having supervisory authority ( see Candela v City of New York , 8 AD3d 45 [1st Dept 2004]).
In sum, the evidence that Benitez submitted sufficiently raises issues of fact as to defendants' alleged assumed duty to provide and monitor security cameras, and her reliance thereon. Defendants' motion for summary judgment is denied as to the third cause of action of negligence .
Benitez cross-moves for summary judgment in her favor regarding the second through fifth and the seventh through ninth affirmative defenses asserted by defendants.
The second affirmative defense asserts that Benitez's injuries resulted from her alleged assumption of risk. "The doctrine of assumption of risk provides a defense to a personal injury claim if it is shown that the condition or activity that caused the injury involved an inherent, known and obvious risk that was voluntarily assumed by the plaintiff" ( Clark v Interlaken Owners, Inc. , 2 AD3d 338 , 339 [1st Dept 2003]; see also Morgan v State of New York, 90 NY2d 471). "Awareness of risk is not to be determined in a vacuum', but rather, against the background of the skill and experience of the particular plaintiff'" ( Clark, 2 AD3d at 339). A plaintiff consents to the risk, when the risk is "fully comprehended or perfectly obvious" ( Morgan, 90 NY2d at 484, quoting Turcotte v Fell, 68 NY2d 432, 439).
Defendants' second affirmative defense asserts that "any and all risks, hazards, defects and dangers alleged were of an open, obvious and apparent nature and inherent and known or should have been known to the plaintiffs herein, and the plaintiffs willingly and voluntarily assumed all such risks, hazards, defects and dangers" (Defendants' Answer, Second Affirmative Defense at 4). Here, there is no evidence demonstrating that Benitez was aware or fully comprehended that, by merely entering into the elevator in her building with a stranger, she was going to be attacked, or that she was exposing herself to a perfectly obvious danger ( see Galan v Rodino, Sup Ct, NY County, Index No. 16247/92, J. Stephen Crane). Thus, the second affirmative defense is dismissed.The third and fourth affirmative defenses are based on Benitez's alleged culpable conduct, in that it asserts that "by the exercise of reasonable caution, plaintiff would have discovered the alleged defect, risks, and/or hazards perceived and observed their danger and avoided the alleged injuries and danger" (Defendants' Answer, Third Affirmative Defense, at 4), and seeks that any damages assessed against them be diminished by plaintiffs' culpable conduct ( id., Fourth Affirmative Defense, at 4). Defendants contend that Benitez's culpable conduct "goes to whether or not she could have prevented [the assailant] from entering or caused his actual entry into the building" (Meyer Reply Affirm. ¶ 31).
"[T]he question of comparative negligence should be given to the jury where there is any valid line of reasoning or permissible inferences which could possibly lead rational individuals to the conclusion of negligence on the basis of the evidence presented at trial" ( Shea v New York City Tr. Auth., 289 AD2d 558, 559 [2d Dept 2001]). In considering a plaintiff's culpable conduct, "a jury must determine under the reasonable person standard whether plaintiff was aware of the facts and appreciated the danger which made plaintiff's act unreasonable" ( Olmoz v Wal-Mart Stores, Inc., 11 Misc 3d 1084 [a], 2006 NY Slip Op 50683[U] [Sup Ct, Orange County 2006]; see also Leiner v First Wythe Ave. Serv. Sta., 121 Misc 2d 559 [Civ Ct, Kings County 1983], affd 127 Misc 2d 795 [App Tm, 2d Dept 1985]). The standard of conduct to which a child must conform to avoid being negligent is that of a reasonable child of like age, intelligence and experience under like circumstances ( Deliso v Cangialosi, 117 Misc 2d 105 [Civ Ct, Kings County 1982]; Restatement [Second] of Torts § 464 ).
Benitez was 13 years old at the time of the incident. In the instant case, there is no basis to conclude that Benitez could have prevented the assailant from entering the building, or that, under the circumstances as presented in the record, a reasonable child of like age, intelligence and experience had some obligation to prevent the assailant from entering the building, particularly when his entry was made possible when an unknown person buzzed them in. To the extent that the third and fourth affirmative defenses are premised on such a duty or ability, they are dismissed.
The fifth, seventh and eighth affirmative defenses seek to relieve defendants from any liability based on based on the intervening and superseding acts of the plaintiff (fifth and seventh) and/or the assailant (eighth). The actions of a plaintiff or a third person, which are extraordinary and unforeseeable, will be deemed a superseding cause, breaking the causal connection between a defendant's negligence and a plaintiff's injuries ( see Derdiarian v Felix Contr. Corp. , 51 NY2d 308 ; see also Soomaroo v Mainco El. Elec. Corp., 41 AD3d 465 [2d Dept 2007]). The issue of whether an act by a plaintiff or a third person is a superseding cause or whether it is a normal consequence of the situation created by a defendant are typically questions to be determined by the trier of fact ( see Lynch v Bay Ridge Obstetrical Gynecological Assoc., 72 NY2d 632; see also Derdiarian v Felix Contr. Corp., 51 NY2d 308, supra).
With respect to Benitez, an underage child "should only be charged with the standard of care that is usual and common to children her age" ( Carmen P. v PS S Realty Corp., 259 AD2d 386, 388 [1st Dept 1999]). Furthermore, where a child's action was "a foreseeable consequence of a circumstance created by defendant, liability will not be precluded" ( id.). Under the circumstances, the record demonstrates that Benitez's action in entering the building with the assailant after they were buzzed in was foreseeable, ordinary and non-negligent under the circumstances. The ninth affirmative defense claiming that Benitez's injuries were caused by her own fault, negligence, culpable conduct, and assumption of risk is dismissed.
Thus, the fifth affirmative defense and the seventh affirmative defense are dismissed, being based on a theory of superseding and intervening acts.
As for the assailant, the fact that his acts may constitute criminal conduct does not necessarily make them a superseding cause as a matter of law ( see Nallan, 50 NY2d at 520-521; Vetrone v Ha Di Corp , 22 AD3d 835 [2d Dept 2005]). "Intervening criminal acts may still give rise to liability under ordinary principles of negligence where there is a sufficient underlying legal relationship between the parties, and where the acts are `a "reasonably foreseeable" consequence of circumstances created by the defendant" ( Vetrone v Ha Di Corp , 22 AD3d 835 , 839 quoting Bell v Bd. of Educ. of the City of NY, 90 NY2d 944, 946). Under the circumstances, there is a legal relationship between the parties, a tenant-landlord relationship; the landlord has a non-delegable duty to exercise reasonable care in maintaining its property in a reasonable safe condition ( Basso v Miller, 40 NY2d 233, supra). Furthermore, assuming arguendo, that it is found that defendants had assumed a duty to monitor the security cameras, the criminal acts of the assailant might be viewed as a foreseeable consequence of defendants' failure to monitor them at the time of the incident ( see Vetrone v Ha Di Corp , 22 AD3d 835 , supra). Accordingly, the eighth affirmative defense is dismissed. Defendants may nevertheless seek to demonstrate the proportionate share of the assailant's culpability for plaintiff's injury, in diminution of defendants' liability under CPLR Article 16, pleaded in the sixth affirmative defense (which plaintiff did not move to dismiss).
As to causation, the Court notes that plaintiff must still prove that any act or omission by defendants was a substantial factor in causing plaintiff's injury. It is thus a trial question whether monitoring and intervention (e.g., by calling the police) could have prevented or interrupted the assault.
Accordingly, it is
ORDERED that defendants' motion for summary judgment is granted only to the extent of dismissing the first and second causes of action; and it is further
ORDERED that Benitez's cross motion for an order dismissing the second through fifth and seventh through ninth affirmative defenses asserted by defendants is granted and those affirmative defenses are dismissed as indicated.