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ELMA BENNETT, APPELLANT, v. TWIN PARKS NORTHEAST HOUSES, INC., ET AL., RESPONDENTS.

93 N.Y.2d 860, 710 N.E.2d 659, 688 N.Y.S.2d 94 (1999).
March 25, 1999

1 No. 89 SSM 3

[99 NY Int. 0036]
Decided March 25, 1999


This opinion is uncorrected and subject to revision before publication in the New York Reports.

Submitted by Elliot Skydel, for appellant.
Submitted by Michelle S. Russo, for respondent Twin
Parks.
Submitted by Stuart Diamond, for respondent Gemini
Investigations.
Submitted by Robert P. Pagano, for respondent
Granville.

MEMORANDUM:

The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of an issue raised but not determined on the appeal to that court. It is unnecessary to answer the certifiedquestion.

The assailant who attacked plaintiff in the lobby and elevator of her apartment building remains unidentified. Plaintiff, however, has raised a triable issue of fact regarding whether it was "more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance" ( Burgos v Aqueduct Realty Corp., 92 NY2d 544, 551). Therefore, the lower courts should not have granted summary judgment to defendants on proximate cause grounds.

An issue lingers, however, as to whether defendant Twin Parks is entitled to summary judgment on the alternative ground that it was an out–of–possession titleholder, with no duties or responsibilities concerning the security of the building. While this issue was raised in the courts below, the Appellate Division did not address or resolve it. We therefore reverse and remit to the Appellate Division for determination of the undecided issue.

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On review of submissions pursuant to section 500.4 of the Rules, order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein. Certified question not answered as unnecessary. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Decided March 25, 1999