Rothfuss v. Wilson Commencement Park

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying that part of the motion of defendants Wilson Commencement Park (Wilson) and Baldwin Real Estate Corp. (Baldwin) seeking summary judgment dismissing the complaint against Baldwin. Those defendants established that Baldwin was not responsible for security at the apartment complex where plaintiff resided, which was owned by Wilson and managed by Baldwin. Plaintiff 971 failed to raise a triable issue of fact whether she relied upon the performance of Baldwin’s contractual obligations to her detriment or whether she was an intended beneficiary of the contract between Baldwin and Wilson (see, Eaves Brooks Costume Co. v Y.B.H. Realty, 76 NY2d 220, 226; cf., Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 586-587). The motion also sought in the alternative dismissal of the punitive damages claim against Wilson and Baldwin. With respect to Wilson, the court properly denied that part of the motion “at th[at] time [because the punitive damages claim] is an evidentiary issue to be determined at the time of trial” (see, Kaplan v Sparks, 192 AD2d 1119, 1120; Sweeney v McCormick, 159 AD2d 832, 834). Even assuming, arguendo, that Wilson met its initial burden, we conclude that plaintiff raised a triable issue of fact whether Wilson’s conduct was a proximate cause of her injuries, which resulted from the criminal acts of a third party (see, Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550-551). In view of our determination dismissing the complaint against Baldwin, we do not consider this issue with respect to Baldwin. We therefore modify the order by granting the motion in part and dismissing the complaint against Baldwin. (Appeal from Order of Supreme Court, Monroe County, Polito, J. — Summary Judgment.) Present — Green, J. P., Wisner, Pigott, Jr., Hurlbutt and Scudder, JJ.