JUEL A. FREDERICK, ETC., plf-ap, v. 550 REALTY HEIGHTS, LLC def-res

8765. JUEL A. FREDERICK, ETC., plf-ap, v. 550 REALTY HEIGHTS, LLC def-res — 550 REALTY HEIGHTS, LLC THIRD-PARTY PLAINTIFFS, v. DOUGLAS O'NEIL Third-Party def — Law Office of Charles Nathan, P.C., Bronx (Charles Nathan of counsel), for ap — Lewis Brisbois Bisgaard & Smith, New York (Georgia S. Alikakos of counsel), for res — Order, Supreme Court, New York County (Eileen A. Rackower, J.), entered November 7, 2011, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion to find the Dead Man's Statute (CPLR 4519) applicable and to suppress the criminal records of plaintiff's decedent, unanimously affirmed, without costs.

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8765. JUEL A. FREDERICK, ETC., plf-ap, v. 550 REALTY HEIGHTS, LLC def-res — 550 REALTY HEIGHTS, LLC THIRD-PARTY PLAINTIFFS, v. DOUGLAS O’NEIL Third-Party def — Law Office of Charles Nathan, P.C., Bronx (Charles Nathan of counsel), for ap — Lewis Brisbois Bisgaard & Smith, New York (Georgia S. Alikakos of counsel), for res — Order, Supreme Court, New York County (Eileen A. Rackower, J.), entered November 7, 2011, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint, and denied plaintiff’s cross motion to find the Dead Man’s Statute (CPLR 4519) applicable and to suppress the criminal records of plaintiff’s decedent, unanimously affirmed, without costs.

Dismissal of the complaint was warranted in this action. Although plaintiff alleges that the decedent was fatally shot in the lobby of the building where he resided, and that the shooter and two accomplices were able to gain access due to a negligently maintained lock, defendant established that plaintiff would be unable to demonstrate that the three perpetrators entered the premises by reason of a malfunctioning door lock and that the assailant was an intruder (see Rivera v. New York City Hous. Auth., 239 AD2d 114 [1st Dept 1997). Defendant submitted the sworn written statement and plea allocution of third-party defendant O'Neil, who was one of the three assailants, and who pled guilty to his role in the decedent's death. Those statements indicate that the decedent knew the assailants and permitted them to enter the building's lobby. Thus, the decedent's actions were "an intervening cause of the criminal act absolving defendants of any negligence" (S.M.R.K., Inc. v. 25 W. 43rd St. Co., 250 AD2d 487, 487 [1st Dept 1998], lv denied 92 NY2d 817 [1998]). Plaintiff’s opposition failed to show that any negligent conduct on the part of defendants was a proximate cause of the injury (see Morrison v. New York City Hous. Auth., 227 AD2d 319 [1st Dept 1998]).

JUEL A. FREDERICK, ETC., plf-ap, v. 550 REALTY HEIGHTS, LLC def-res

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