State of New York                                               MEMORANDUM
Court of Appeals                                           This memorandum is uncorrected and subject to
                                                         revision before publication in the New York Reports.




 No. 116 SSM 18
 Evelyn Laniox,
         Appellant,
      v.
 City of New York,
         Defendant,
 New York City Housing Authority,
         Respondent.




 Edward C. De Vivo, for appellant.
 Patrick J. Lawless, for respondent.




 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

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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]).




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Laniox v City of New York
SSM No. 18




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

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the issue of proximate cause. In the absence of a prima facie showing, the burden 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.

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On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with
costs, in a memorandum. Chief Judge DiFiore and Judges Stein, Garcia and Wilson concur.
Judge Feinman dissents in an opinion in which Judges Rivera and Fahey concur.

Decided November 21, 2019




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