Perry v. New York City Housing Authority

Altman, J.,

dissents and votes to affirm the order appealed from with the following memorandum in which Joy, J., concurs. I agree with my colleagues that the plaintiff did not submit evidence sufficient to raise an issue of fact as to whether her injuries were proximately caused by the defendant’s alleged failure to provide locks for the outside doors of the building. As to her apartment door, however, the plaintiff came forward with evidence which demonstrated that the defendant breached its duty to take minimal safety precautions to protect its tenant from a reasonably foreseeable criminal act (see, Miller v State of New York, 62 NY2d 506, 513).

The plaintiff stated that the door did not fit properly within the frame. It was "loose fitting” and, although the door had a *569lock, it could be pushed open without the use of a key. She testified that on the night of the assault it took her ex-boyfriend "about two seconds” to gain access to her apartment. The plaintiffs allegations were not merely conclusory. Rather, she described a specific problem with the door and the ease with which access to her apartment was gained. This is not a products liability case requiring the plaintiff to demonstrate a design defect in a product (compare, Fallon v Hannay & Son, 153 AD2d 95).

Further, the plaintiff came forward with evidence that she had reported the problem to the defendant and had requested that the door be repaired the week prior to the assault. In addition, there was evidence that the defendant was aware that the plaintiff had previously been attacked in her apartment by this same man. Accordingly, I would affirm the Supreme Court’s denial of the defendant’s motion for summary judgment.