Court: Rape victim can sue landlord

Real Estate Weekly, July 11, 2001 by Natalie Keith

Court overturns ruling in '92 attack

The New York State Court of Appeals has ruled that a woman who was attacked in her Lefrak City apartment can move forward with a lawsuit against the landlord.

In the July 2 decision, the Court of Appeals found that the woman's failure to look through a peephole before opening the door to her assailant did not absolve the landlord of responsibility. The ruling reversed a decision of a lower court, which had dismissed the suit.

The lawsuit stemmed from a 1992 incident in which the woman opened the door to ex-convict Lawrence Toole who allegedly beat, raped and sodomized her at gunpoint. Shortly before the attack, the woman had received a phone call from her live-in boyfriend saying he would be upstairs in five minutes. After the doorbell rang, she opened the door believing it was her boyfriend.

The woman sued the building owners -- named in court documents as U.E.S.S. Leasing Corporation and Builders and Realtors Corporation, Inc. -- and Mid-City Security Service, Inc, the firm that provided security services at the complex.

In the lawsuit, the woman alleges that the landlord negligently allowed Toole to enter the building, Mid City negligently performed its security contract and the landlord "breached the implied warranty of habitability by failing to properly staff the security desk or secure the complex," according to court documents.

The defendants filed a motion for summary judgement, which the Supreme Court granted. In dismissing the case, the court said the woman failed to show that the landlord's negligence was the result of her injuries. A divided Appellate Division reversed the Supreme Court decision, saying a "question of fact existed as to whether defendants negligently permitted Toole, a nonresident and known troublemaker, to enter the building." The July 2 decision by the Court of Appeals upheld the Appellate Division decision.

Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person. Toole, who had relatives living in the complex, had been arrested in connection with several criminal acts in the complex, including robbery, attempted rape, and the beating of a security guard. He had been arrested on the premises and the landlord kept an arrest photo of him, the court of appeals said.

"On a motion for summary judgement, a plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiffs injuries. Here, questions of fact remain as to whether defendants negligently failed to exclude Toole," the court ruled. "More discovery is warranted to discern how foreseeable a risk he was and what measures defendants had in place to deal with him."