Laniox v City of New York, 34 NY3d 994 (2019)

2019 NY Slip Op 08448 [34 NY3d 994]
November 21, 2019
Court of Appeals

[*1]

Evelyn Laniox, Appellant,
v
City of New York, Defendant, and New York City Housing Authority, Respondent.

Decided November 21, 2019

Laniox v City of New York, 170 AD3d 519, affirmed.

{**34 NY3d at 995} OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed, with costs. On this record, the New York City Housing Authority met its initial burden of demonstrating that no material triable issues of fact exist through its showing that plaintiff’s assailant was likely not an intruder. In response, plaintiff failed to adduce any admissible evidence from which a jury could conclude, without engaging in speculation, that her assailant was an intruder and, concomitantly, whether defendant’s alleged negligence was a proximate cause of her injuries (see Burgos v Aqueduct Realty Corp., 92 NY2d 544 [1998]).

Feinman, J. (dissenting). I dissent. The New York City Housing Authority (NYCHA) failed to tender sufficient evidence demonstrating that the unidentified assailant likely was not an intruder and, thus, did not establish a prima facie showing of entitlement to summary judgment on the issue of proximate cause. In the absence of a prima facie showing, the burden{**34 NY3d at 996} never shifted to plaintiff to establish triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The Appellate Division therefore erred by granting NYCHA’s motion.

Chief Judge DiFiore and Judges Stein, Garcia and Wilson concur; Judge Feinman dissents in an opinion in which Judges Rivera and Fahey concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.