Muniz v. Flohern, Inc.

OPINION OF THE COURT Rosenberger, J. This appeal places before us the question of whether a landlord may be held liable for the injury to a pedestrian outside of his building caused by a bullet shot from inside the premises during a robbery of the allegedly known, illegal "drug supermarket” operated therein. The plaintiffs are a nine-year-old boy who was permanently blinded when he was shot in the head while passing in front of defendants-respondents’ building, and his mother. Upon review of the record herein, we conclude that respondents were not entitled to summary judgment as a matter of law, and that Supreme Court erred in dismissing the complaint. Respondents’ motion for summary judgment was supported only by an affirmation of counsel, wherein it was asserted that the infant plaintiff had been injured during the course of an [174] attempted robbery by one Gregory Gardner who was indicted and pleaded guilty to the charges. Despite the fact that counsel identified the indictment number and the date of the guilty plea, no court records or copy of the indictment were submitted in support of the motion. Plaintiffs-appellants, in opposition to the motion, alleged that the store was a notorious drug location which had been raided by the police on five occasions prior to the shooting on January 13, 1980, in which the infant plaintiff was blinded. Two handwritten statements taken from the superintendent of the building by appellants’ investigator in July 1980 contain allegations that the patrons of the store did not go there to buy clothing but to buy drugs, and that the superintendent had "reported the misuse of the store to the landlords” several times prior to the shooting. Appellants also submitted an affidavit from Felix Santana, executive director of the West 134th Street Block Association since 1968, who had received many complaints from people in the neighborhood about the store on respondents’ premises. According to Mr. Santana, it was well known in the community "about drugs and narcotics being sold in that store.” He also attested to the fact that prior to 1980, the store had been raided by the police on various occasions but "no sooner had the raid occurred and the store closed, when it was re-opened with the sale of drugs and narcotics as usual.” Despite this evidence, which was sufficient to raise a triable issue of fact, Supreme Court accepted respondents’ denial of all knowledge of drug sales from the store on their premises. Supreme Court concluded that even if the landlord had knowledge of the drug operation it "stretches foreseeability much too far” to conclude the landlord should have foreseen an attempted robbery of the drug operation. We disagree. While the intervening criminal act of a third person will generally be deemed a superseding cause which severs the liability of the original tort-feasor, this is not the case "when the intentional or criminal intervention of a third party or parties is reasonably foreseeable” (Kush v City of Buffalo, 59 NY2d 26, 33 [1983]). Thus, a landlord may be held liable for the personal injury inflicted upon a tenant or guest by a criminal intruder in a common area of the building if the landlord should have anticipated a risk of harm from criminal activity to persons on the premises (Miller v State of New York, 62 NY2d 506 [1984]; Nallan v Helmsley-Spear, Inc., 50 [175] NY2d 507, 519-520 [1980]; Sherman v Concourse Realty Corp., 47 AD2d 134 [2d Dept 1975]). In this case, however, neither the injured infant nor his mother had any relationship with respondents; they were merely passersby. Consequently, respondents argue, appellants were not within "the orbit,of duty imposed on the owner of the building” and, as the Court of Appeals held in Waters v New York City Hous. Auth. (69 NY2d 225 [1987]) a landlord has no duty to "the public at large, with no connection to the premises, who might be victimized by street predators” (supra, at 229). In Waters (supra), the plaintiff was accosted on the street by a man with a knife who forced her to walk around the corner and into an unlocked building where she was robbed and sodomized. The Court of Appeals affirmed the summary judgment in favor of the defendant landlord on the ground that neither the plaintiff nor her assailant had any relationship to the defendant. Although the court noted that "strict notions of privity are not dispositive in defining the scope of a landlord’s duty”, the court found that no important public policy would be advanced by extending the scope of a landlord’s duty to maintain secure premises for the benefit of the public-at-large. (Supra, at 230.) Appellants contend that Waters (supra) is distinguishable because in this case it is alleged that the crime which led to the infant’s injury was directly related to the illegal drug operation which was openly and notoriously conducted on respondents’ premises. Respondents’ building was not merely a fortuitous site randomly chosen by a malefactor, but was itself the scene of an unlawful activity which is known to attract violent crime. This case is also distinguishable from Santiago v New York City Hous. Auth. (63 NY2d 761), on which the dissent relies. While a shooting incident may not be a reasonably foreseeable consequence of the failure to repair a door, it is an all too foreseeable consequence of the drug trade which respondents allegedly tolerated on their premises. On this point, we must agree with appellants. The dissent contends that respondent landlord owed no duty to appellants. The common law of long standing, however, is to the contrary. "It is the duty of the owner of a building, abutting upon a public street, to maintain it in such a condition that it shall not become dangerous to the traveling public” (Appel v Muller, 262 NY 278, 280 [1933]). In Appel v [176] Muller, the Court of Appeals held that a landlord does have a duty to protect pedestrians on the public street from dangerous conditions emanating from his premises (in that case, from falling glass out of a broken window), and "nothing less than 'alienation of the entire property, either permanently, as by deed, or temporarily, as by lease’ ” can absolve him of that duty (supra, 262 NY, at 280, citing Trustees of Vil. of Canandaigua v Foster, 156 NY 354, 362 [per Vann, J.]). While the court recognized that a leasehold which vests the tenant with exclusive possession will relieve the landlord of liability to a passerby due to a dangerous condition arising during the tenant’s occupancy, if the landlord "has covenanted with the tenant to make repairs, he is liable to the passer-by for the injuries inflicted” (supra, 262 NY, at 281). The landlord’s "original duty to the public to maintain the structure in safe condition, and his retention of the power to perform the duty”, the court held, "combine to make him liable” (supra, at 282; Worth Distribs. v Latham, 59 NY2d 231, 238 [1983]; McCabe v Century Theatres, 25 AD2d 154, 157, n 2 [2d Dept 1966], affd 18 NY2d 648). We need not look to the terms of the lease to determine whether the landlord retained the power to remedy a dangerous condition arising from unlawful activity on his premises. Under Real Property Law § 231 an owner of real property who knowingly allows that property to be used or occupied for. any unlawful trade, manufacture or business "is liable severally, and also jointly with one or more of the tenants or occupants thereof, for any damage resulting from such unlawful use” (subd [2]). This statute expresses the clear public policy of the State which requires that owners of real property be vigilant in preventing their property from being used for unlawful purposes. To this end, subdivision (1) of section 231 provides that whenever a lessee or occupant uses any part of a building for an unlawful trade or business, the lease "shall thereupon become void, and the landlord of such lessee or occupant may enter upon the premises so let or occupied.” It is to be noted that the owner of these premises was not reluctant to enlist the aid of the courts when the tenant of the subject premises was late in rent payments, having twice commenced summary judgment proceedings for nonpayment. The common law also imposes a duty upon landlords to control the conduct of persons on their premises when they are reasonably aware of the necessity to do so (Mangione v Dimino, 39 AD2d 128, 130 [4th Dept 1972]), and this duty [177] extends to the protection of persons lawfully present in public places adjacent to the landlords’ premises (De Rosa v Fordham Univ., 18 AD2d 1056 [1st Dept 1963]). These compelling reasons of public policy lead us to conclude that the intervening criminal act of another is not a superseding cause which will relieve a landlord, who knows or has reason to know of illegal activities on his premises, of liability for injuries to innocent persons not in privity with the landlord where the intervening criminal act is a reasonably foreseeable sequela of such illegal use. The shot which blinded the infant plaintiff was fired from inside the store during a robbery of this illegal "drug supermarket”. Public policy is furthered by requiring that property owners not permit illegal enterprises which attract violent confrontations to flourish on their premises. Appellants’ allegations regarding the shooting in which the infant was injured and the illegal drug operation on respondents’ premises, which was known in the community and which had been the target of several police raids, are legally sufficient to state a cause of action against respondents. Accordingly, the order of the Supreme Court, New York County (Beatrice Shainswit, J.), entered July 11, 1988, which granted respondents’ motion for summary judgment and dismissed the complaint against them should be reversed, on the law, and the complaint reinstated, without costs.