Roberts v. Jam Realty Co. (260 A.D.2d 230, 1999)

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 18, 1998, which denied defendants’ motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.

This action arises out of the burglary of several apartments in a building located at 230 East 25th Street in the City and County of New York. Plaintiff is the tenant of apartment 3D. Defendant Jam Realty Company is the owner of the building, and the individual defendants are its partners (collectively, the landlord). Because of a December 1993 fire that severely damaged the subject premises, gas and electrical power services were discontinued. As a result, the building was the subject of a vacate order and plaintiff, whose apartment was not damaged, removed from the premises, allegedly leaving valuable possessions behind. While the building remained unoccupied, a party or parties unknown gained access to several apartments by removing the security gates and breaking windows abutting a fire escape. Plaintiffs apartment was burglarized along with three others, designated 4D, 5D and 6F.

The original complaint asserted that defendants had been negligent in the hiring and supervision of the employees who performed the renovation work at the subject building. In response to defendants’ motion to dismiss this claim for lack of any supporting evidence, plaintiff sought and was granted leave to amend his complaint. In connection with that application, plaintiff averred that defendants “cannot claim prejudice because there are no new facts being alleged”. The amended complaint seeks damages of $1,000,000 for the loss of personal property on the ground that defendants failed “to exercise reasonable and ordinary care to safeguard his personal property kept in his apartment” during performance of the renovation work.

It is uncontested that previous criminal activity in the subject building while under defendant’s control was minimal, at the very worst. Although plaintiff asserted that a number of burglaries had occurred at the premises prior to the commencement of his tenancy in July 1978, he provided no evidence of any criminal activity subsequent to defendant Jam Realty Company’s acquisition of the building in January 1995. Plaintiff concedes that, just prior to the time of the fire, the building was a safe place to live. Nevertheless, it is plaintiff’s contention that, due to the unique circumstances of this case, it is unnecessary to establish the occurrence of prior criminal conduct at the premises to hold defendants liable for his loss of property.

The owner’s duty to prevent unauthorized access by criminals is ancillary to the general obligation to maintain premises in a safe condition. As this Court stated in Todorovich v Columbia Univ. (245 AD2d 45, 45-46, Iv denied 92 NY2d 805):