April 23, 1998
Appeal from the Supreme Court, Bronx County (Stanley Green, J.).
The trial court properly set aside the verdict on the ground that plaintiff had to prove not only that the assailant gained access to the building through the defective rear door used regularly by building residents, but also that the assailant was an intruder, that is, a person who was neither a resident nor a guest of a resident, and that plaintiff failed to meet this burden of proof ( Wright v. New York City Hous. Auth., 208 A.D.2d 327, 330-331; Melville v. New York City Hous. Auth., 242 A.D.2d 244, 245). Plaintiff's testimony that she had never seen the assailant in this large building either before or after the attack is insufficient as a matter of law to prove that the assailant was an intruder ( Burgos v. Aqueduct Realty Corp., 245 A.D.2d 221, 223), and the fact that the assailant did not disguise himself and ran out of the building after the attack does not cure this shortcoming.
Concur — Sullivan, J.P., Rosenberger, Rubin, Tom and Andrias, JJ.