672 N.Y.S.2d 676 | N.Y. App. Div. | 1998
—Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered March 26, 1997, setting aside a verdict in plaintiff tenant’s favor in an action against defendant landlord for personal injuries allegedly sustained as a result of inadequate building security, and dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about December 2, 1996, which granted defendant’s motion to set aside the verdict, unanimously dismissed, without costs, as superseded by the appeal from the judgment.
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 AD2d 327, 330-331; Melville v New York City Hous. Auth., 242 AD2d 244, 245). Plaintiffs 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 AD2d 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.
