author: Titone, J.

text:
    The People of the State of New York, Respondent, v Craig Childress, Appellant.
    Argued January 12, 1993;
    decided February 23, 1993

      POINTS OF COUNSEL

      Alfred O’Connor, Hempstead, Matthew Muraskin and Kent V. Moston for appellant.
    Appellant established a prima facie case of race discrimination by objecting to the prosecution’s peremptory strikes against two of three African-Americans in the jury panel. (Strauder v West Virginia, 100 US 303; Swain v Alabama, 380 US 202; Batson v Kentucky, 476 US 79; People v Kern, 75 NY2d 638; Powers v Ohio, 499 US 400; People v Bolling, 79 NY2d 317; People v Brown [Larry], 144 AD2d 373; People v Dove, 154 AD2d 705; People v Howard, 128 AD2d 804; People v Hassell, 149 AD2d 530.)

      Denis Dillon, District Attorney of Nassau County, Mineola (Peter A. Weinstein of counsel), for respondent.
    Defendant failed to establish a prima facie case of race discrimination by the prosecutor in the exercise of his peremptory challenges. (Batson v Kentucky, 476 US 79; People v Kern, 75 NY2d 638; People v Bolling, 79 NY2d 317; People v Jenkins, 75 NY2d 550; Alvarado v United States, 497 US 543; People v Hernandez, 75 NY2d 350; United States v Clemons, 843 F2d 741; United States v Dawn, 897 F2d 1444; United States v Allison, 908 F2d 1531; People v Simmons, 79 NY2d 1013.)
   OPINION OF THE COURT

Titone, J.

This appeal involving the application of Batson v Kentucky (476 US 79) concerns the minimum showing that must be made to establish a prima facie case of unlawful discrimination in the use of peremptory challenges. Also at issue is whether the minutes of the voir dire must be furnished in order to obtain relief on appeal under Batson v Kentucky (supra).

Defendant, an African-American, was charged with burglarizing an apartment in Freeport, Long Island. During the selection of the jury preceding his trial, defense counsel asserted that the prosecutor was using his peremptory challenges to exclude African-American jurors. The following colloquy ensued:

"[defense counsel]: Your Honor, I would like to raise an objection at this point. The district attorney has excluded black jurors on the panel. I feel that their questioning was proper. They indicated no reason why they could not serve fairly on this jury. I think that there must be some motivation for that challenging. And I would ask the Court to exclude those challenges.
"the court: I am old fashioned. I think the word peremptorily means exactly what it says. However, aside from that, I don’t notice anything. Of course, you have your exception.
"[prosecutor]: If I could just make a record?
"the court: Go ahead.
"[the prosecutor]: There were three black jurors on this particular panel, and I accepted one black juror. And it is not as if I was excluding black jurors because of their race.
"the court: Okay. You have an exception.”

A panel of 12 jurors was ultimately seated. Defendant was tried and convicted of burglary in the second degree and possession of burglar’s tools.

On his appeal from the judgment of conviction, defendant argued, among other things, that the trial court had erred in refusing to require the prosecutor to furnish a race-neutral explanation for his use of peremptories to exclude African-American jurors. The Appellate Division rejected this argument, holding that defendant had "failed to substantiate his claim * * * since the voir dire proceedings have not been made available as part of the record on appeal” (177 AD2d 498, 499, citing People v Campanella, 176 AD2d 813). Defendant subsequently appealed to this Court by permission of one of its Judges. We now affirm the order of the Appellate Division, but on a somewhat different analysis.

Initially, to the extent that the trial court based its ruling on any purported right of the prosecutor to make peremptory challenges regardless of their racial basis, the court clearly misstated the law. The Supreme Court’s landmark ruling in Batson v Kentucky (supra) definitively foreclosed any such arguments and articulated a new standard for establishing a claim of racial discrimination in the use of peremptory challenges. Since Batson was decided, this Court, as well as the Supreme Court, have elaborated upon that new standard (see, e.g., Powers v Ohio, 499 US 400, 111 S Ct 1364; Griffith v Kentucky, 479 US 314; People v Bolling, 79 NY2d 317; People v Kern, 75 NY2d 638; People v Jenkins, 75 NY2d 550). As we noted in People v Jenkins (supra, at 555), it is "no longer open to question” that "the racially motivated exercise of peremptory challenges * * * violates the Equal Protection Clause of the Fourteenth Amendment.” The time is long since past for questioning the basic premises underlying Batson and its progeny.

The standard mandated by Batson is a relatively straightforward one. First, a defendant asserting a claim under the Batson formula must present a prima facie case by showing that the prosecution exercised its peremptory challenges to remove one or more members of a cognizable racial group from the venire and that there exist facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenges to exclude potential jurors because of their race (Batson v Kentucky, supra, at 96-98; People v Jenkins, 75 NY2d 550, 555-556, supra; see, Powers v Ohio, 499 US 400, supra). Once that prima facie showing has been made, the burden shifts and the prosecution must come forward with a race-neutral explanation for its challenged peremptory choices (Batson v Kentucky, supra, at 96-97).

The first element of a prima facie case — demonstrating that members of a cognizable racial group have been excluded — is seldom problematic. The more difficult aspect of the prima facie case delineated in Batson is the second element — a showing of "facts and other relevant circumstances” that would support an inference of impermissible discrimination. That is the element that concerns us here.

"There are no fixed rules for determining what evidence will give rise to an inference sufficient to establish a prima facie case” (People v Bolling, 79 NY2d 317, 323-324, supra). A pattern of strikes or questions and statements made during the voir dire may be sufficient in a particular case (see, Batson v Kentucky, supra, at 97; see also, People v Jenkins, 75 NY2d 550, 556, supra). Additionally, this element may be established by a showing that members of the cognizable group were excluded while others with the same relevant characteristics were not (see, People v Bolling, supra, at 324). Another legally significant circumstance may exist where the prosecution has stricken members of this group who, because of their background and experience, might otherwise be expected to be favorably disposed to the prosecution (see, People v Scott, 70 NY2d 420, 425). The court should also take into consideration the fact that the mere existence of a system of peremptory challenges may serve as a vehicle for discrimination by those with racially motivated inclinations (see, Batson v Kentucky, supra, at 96).

Further, although rarely dispositive, the fact that a disproportionate number of strikes have been used against members of a particular racial or ethnic group may be indicative of an impermissible discriminatory motive (see, People v Jenkins, supra, at 556). Conversely, "[t]he mere inclusion of some members of defendant’s ethnic group will not defeat an otherwise meritorious [Batson] motion” (People v Bolling, supra, at 324). The inclusion of token members of a racial group is not an acceptable substitute for a jury selected by racially neutral criteria, and the exclusion of even one member of a group for racial reasons is abhorrent to a fair system of justice.

Under the circumstances presented here, defense counsel’s sketchy assertions during the colloquy on the Batson claim did not establish a basis for relief. While the prosecutor admittedly exercised his peremptories to strike two of the three African-American jurors, that fact alone is not sufficient, on this record, to establish a "pattern of purposeful exclusion sufficient to raise an inference of discrimination” (People v Steele, 79 NY2d 317, 325; cf., People v Hawthorne, 80 NY2d 873). We reject defendant’s argument that the burden of proving a pattern of purposeful exclusion should be lessened when the size of a particular racial group in a given community is so small as to make statistical evidence inherently unreliable.

Defense counsel’s other assertions during the Batson colloquy that "[the prospective jurors’] questioning was proper” and that "[t]hey indicated no reason why they could not serve fairly on this jury” were also insufficient to establish a prima facie case on this record. The latter assertion served only to highlight that the stricken jurors demonstrated no biases that would disqualify them for service or support a challenge for cause. The former assertion was simply too broad and conclusory to support an inference of discriminatory motive.

We note that, in order to give the trial court a proper foundation to evaluate the claim — as well as to ensure an adequate record for appellate review — a party asserting a claim under Batson v Kentucky (supra) should articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed. Where counsel has perceived something suggesting a discriminatory motive in the questioning of prospective jurors or in the answers the jurors have given, the specific facts underlying counsel’s concerns should be fully articulated and described. Despite the absence of voir dire minutes, a trial or appellate court may determine, based on facts elicited during the Batson colloquy, whether a prima facie case of discriminatory use of peremptory challenges has been established (see, People v Bolling, 79 NY2d 317, 324, supra; People v Scott, 70 NY2d 420, 423-424, supra). In most instances, the minutes of the voir dire will be helpful or useful only to the extent that it becomes necessary to resolve specific factual disputes arising during, or as a result of, the Batson colloquy. Thus, contrary to the suggestion in the Appellate Division’s opinion below, the minutes of the voir dire need not be provided in every instance as a precondition for obtaining Batson relief. Indeed, the cases in which the voir dire minutes are necessary to resolve the appeal should be relatively rare.

Here, defense counsel did not satisfy his obligation to articulate a sound factual basis for his claim during the Batson colloquy. His perfunctory statements in support of the defense motion for Batson relief plainly did not establish the existence of facts and other relevant circumstances sufficient to raise an inference that the prosecutor had used his peremptory challenges to exclude individuals because of their race (Batson v Kentucky, supra, at 96-98). Thus, the defense’s objection to the prosecutor’s actions was properly overruled, and the Appellate Division correctly affirmed the judgment of conviction.

Accordingly, the order of the Appellate Division should be affirmed.

Acting Chief Judge Simons and Judges Kaye, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed.


source: Caselaw Access Project

author: Titone, J. Bellacosa, J.

license: Public Domain

text:
    Janet Kleeman, Appellant, v Paul D. Rheingold et al., Respondents.
    Argued March 23, 1993;
    decided May 4, 1993
    POINTS OF COUNSEL

      Richard Frank, P. C., New York City (Kathleen Peratis of counsel), for appellant.
    I. Rheingold had a nondelegable duty to commence Kleeman’s action in a timely manner. He is not absolved of that duty by purporting to delegate it to a process server. (Cohen v Lipsig, 92 AD2d 536; Broadway Maintenance Corp. v Tunstead & Shechter, 110 AD2d 587; Feliberty v Damon, 72 NY2d 112; Putnam v Morris, 833 F2d 903; Braxton v United States, 817 F2d 238.) II. Rheingold, as an agent, is responsible to Kleeman for the negligence of Rheingold’s subagent, Fischer’s, even though Fischer’s was an independent contractor. (Demian, Ltd. v Frank Assocs., 671 F2d 720; Victory Carriers v United States, 467 F2d 1334; Anchor Sav. Bank v Zenith Mtge. Co., 634 F2d 704; Columbia Broadcasting Sys. v Stokely-Van Camp, Inc., 522 F2d 369; Exxon Corp. v Central Gulf Lines, 717 F Supp 1029; Miles v R & M Appliance Sales, 26 NY2d 451; Mduba v Benedictine Hosp., 52 AD2d 450; Santiago v Archer, 136 AD2d 690; Bucholtz v Sirotkin Travel, 80 Misc 2d 333; Ostrander v Holm’s Vil. Travel, 87 Misc 2d 1049.) III. Rheingold, as a lawyer-agent, is liable to Kleeman for his own negligence in failing to insure that process was properly served and Kleeman’s rights protected. (Garcia v Herald Tribune Fresh Air Fund, 51 AD2d 897; Putnam v Morris, 833 F2d 903; Braxton v United States, 817 F2d 238; Feliberty v Damon, 72 NY2d 112; Tormo v Yormark, 398 F Supp 1159.) IV. The court below relied upon inapposite authority. This is a case of first impression. (Bockian v Esanu Katsky Korins & Siger, 124 Misc 2d 607; Robinson v Jacoby & Meyers, 167 AD2d 134; Balzano v Lublin, 162 AD2d 252.)

      Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Edward A. Magro and Mark K. Anesh of counsel), for respondents.
    I. Defendants-respondents cannot be held vicariously liable for the acts of an independent contractor process server either in tort or under agency law. (Robinson v Jacoby & Meyers, 167 AD2d 134; Balzano v Lublin, 162 AD2d 252; Bockian v Esanu Katsky Korins & Siger, 124 Misc 2d 607; Mduba v Benedictine Hosp., 52 AD2d 450; Putnam v Morris, 833 F2d 903; Braxton v United States, 817 F2d 238; Meese v Miller, 79 AD2d 237; Smirlock Realty Corp. v Title Guar. Co., 70 AD2d 455; E.B.A. Wholesale Corp. v S. B. Mech. Corp., 127 AD2d 727.) II. Defendants-respondents were under no duty to file the summons and complaint with the County Clerk pursuant to CPLR 203 (b) (5). III. Public policy considerations warrant the affirmance of the lower court’s decision. (Bockian v Esanu Katsky Korins & Siger, 124 Misc 2d 607.)
   OPINION OF THE COURT

Titone, J.

In a prior action brought to recover damages for alleged medical malpractice, plaintiff was nonsuited for failure properly to serve the defendant doctor before the Statute of Limitations on her claim expired. The threshold issue in this second malpractice action, which was brought by plaintiff against the lawyers she retained to prosecute the first, is whether an attorney may be held vicariously liable to his or her client for the negligence of a process server whom the attorney has hired on behalf of that client.

According to the allegations in the present complaint, plaintiff, a victim of alleged medical malpractice, had originally retained defendant and his law firm to pursue her claim against Dr. Neils Lauersen. With only five days remaining before the Statute of Limitations on the claim would expire, defendant promptly prepared a summons and complaint. On November 5, 1978, two days before the Statute of Limitations was to run, defendant delivered the prepared documents to Fischer’s Service Bureau, a process service agency regularly used by defendant’s law firm, with the instruction that process was to be served "immediately.” It is undisputed that Fischer’s, not defendant, selected the licensed process server who would actually deliver the papers and that Fischer’s and the process server, rather than defendant, determined the precise manner of effecting service.

Although the process server used by Fischer’s apparently delivered the papers on time, plaintiff’s medical malpractice claim was ultimately dismissed when a traverse hearing revealed that the process server had given the papers to Dr. Lauersen’s secretary rather than Dr. Lauersen himself. By the time the traverse hearing was held, the Statute of Limitations had expired and plaintiff had no further legal recourse against the allegedly negligent doctor. Defendants then attempted to recover on plaintiff’s behalf by "alleging various and different theories of liability against certain other parties.” (Plaintiff’s verified complaint fl 11.) These claims, however, were all resolved against plaintiff in January of 1987.

Plaintiff subsequently commenced the present legal malpractice action against defendant and his law firm, claiming that they should be held liable for the negligence of the process server who had been retained to serve Dr. Lauersen on plaintiff’s behalf. Defendants moved for summary judgment and plaintiff cross-moved. Plaintiff argued that defendants’ liability could be predicated on a nondelegable duty of attorneys to exercise care in assuring proper service of their clients’ legal process. Alternatively, plaintiff argued that the process server was defendants’ agent and that, under settled agency law principles, they could therefore be held accountable for the process server’s wrongful acts. Finally, plaintiff contended that defendants should be held liable because of their own negligence in selecting a process serving agency that was "not a particularly respected or reliable entity,” in failing to supervise or monitor the work of that agency and, finally, in neglecting to file the summons and complaint with the appropriate County Clerk so as to obtain a 60-day toll of the Statute of Limitations on plaintiff’s claim pursuant to CPLR 203 (b) (5).

The trial court rejected all of plaintiff’s arguments. Relying on Bockian v Esanu Katsky Korins & Siger (124 Misc 2d 607) and Ostrander v Holm’s Vil. Travel (87 Misc 2d 1049), the court concluded that a process server is an "independent contractor” rather than an agent of the employing attorney, since "[t]he attorney does not have control over the manner in which the task is performed.” (148 Misc 2d 853, 855.) Accordingly, the court held, the relationship between the process server and the attorney here did not provide a cognizable basis for holding the latter vicariously liable for the acts of the former. On reargument, the court also rejected plaintiff’s claims regarding defendants’ failure to supervise the process server, holding that defendants’ duty was satisfied when they took the necessary steps to commence the action by retaining the services of a licensed process server.

On plaintiff’s appeal, a divided Appellate Division affirmed for essentially the same reasons. We now modify by denying defendants’ motion for summary judgment. As plaintiff’s attorneys, defendants had a nondelegable duty to her and, accordingly, they cannot evade legal responsibility for the negligent performance of that duty by assigning the task of serving process to an "independent contractor.”

The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts (see, Rosenberg v Equitable Life Assur. Socy., 79 NY2d 663, 668; Gravelle v Norman, 75 NY2d 779, 782; Besner v Central Trust Co., 230 NY 357, 362; Prosser and Keeton, Torts § 71 [5th ed]; see also, Restatement [Second] of Torts § 409 [1965]). Although several justifications have been offered in support of this rule, the most commonly accepted rationale is based on the premise that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor (Feliberty v Damon, 72 NY2d 112, 118; Prosser and Keeton, op. cit., at 509).

Despite the courts’ frequent recitation of the general rule against vicarious liability, the common law has produced a wide variety of so-called "exceptions” (see, Feliberty v Damon, supra, at 118; Restatement, op. cit., §§ 410-429). Indeed, it has been observed that the general rule "is now primarily important as a preamble to the catalog of its exceptions” (Pacific Fire Ins. Co. v Kenny Boiler & Mfg. Co., 201 Minn 500, 503, 277 NW 226, 228; accord, La Count v Hensel Phelps Constr. Co., 79 Cal App 3d 754, 145 Cal Rptr 244 [general rule of nonliability applies only where no good reason can be found for departing from it]; Restatement, op. cit., § 409, comment b, at 370 [same]). These exceptions, most of which are derived from various public policy concerns (see, Feliberty v Damon, supra, at 118), fall roughly into three basic categories: negligence of the employer in selecting, instructing or supervising the contractor; employment for work that is especially or "inherently” dangerous (see, Wright v Tudor City Twelfth Unit, 276 NY 303, 307; see also, Rosenberg v Equitable Life Assur. Socy., supra); and, finally, instances in which the employer is under a specific nondelegable duty (see generally, Restatement, op. cit., § 409, comment b, at 371).

The exception that concerns us here — the exception for nondelegable duties — has been defined as one that "requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted” (Restatement, op. cit, ch 15, topic 2, Introductory Note, at 394, quoted in Feliberty v Damon, supra, at 118-119). The exception is often invoked where the particular duty in question is one that is imposed by regulation or statute (e.g., Gravelle v Norman, supra; Allen v Cloutier Constr. Corp., 44 NY2d 290, 300). However, the class of duties considered "nondelegable” is not limited to statutorily imposed duties. To the contrary, examples of nondelegable common-law duties abound (e.g., Storrs v City of Utica, 17 NY 104; see generally, Prosser and Keeton, op. cit., at 511-512, and nn 26-41).

There are no clearly defined criteria for identifying duties that are nondelegable. Indeed, whether a particular duty is properly categorized as "nondelegable” necessarily entails a sui generis inquiry, since the conclusion ultimately rests on policy considerations (Feliberty v Damon, supra, at 119).

The most often cited formulation is that a duty will be deemed nondelegable when " 'the responsibility is so important to the community that the employer should not be permitted to transfer it to another’ ” (id., at 119, quoting Prosser and Keeton, op. cit., at 512). This flexible formula recognizes that the "privilege to farm out [work] has its limits” and that those limits are best defined by reference to the gravity of the public policies that are implicated (5 Harper, James and Gray, Torts § 26.11, at 73 [2d ed]; see also, id., at 76-77).

Viewed in the light of these principles, the duty at issue here — that owed by an attorney to his or her client to exercise care in the service of process — fits squarely and neatly within the category of obligations that the law regards as "nondelegable.” Manifestly, when an individual retains an attorney to commence an action, timely and accurate service of process is an integral part of the task that the attorney undertakes (see, 5 Harper, James and Gray, op. cit., at 76-77; cf, Feliberty v Damon, supra, at 120). Furthermore, proper service of process is a particularly critical component of a lawyer’s over-all responsibility for commencing a client’s lawsuit, since a mistake or oversight in this area can deprive the client of his or her day in court regardless of how meritorious the client’s claim may be. Given the central importance of this duty, our State’s attorneys cannot be allowed to evade responsibility for its careful performance by the simple expedient of "farming out” the task to independent contractors.

The existence of an extensive and comprehensive Code of Professional Responsibility that governs the obligations of attorneys to their clients reinforces our conclusion. Under the Code, a lawyer may not "seek, by contract or other means, to limit prospectively the lawyer’s individual liability to a client for malpractice” (DR 6-102, 22 NYCRR 1200.31). Moreover, the Code forbids lawyers from "[n]eglect[ing] legal matter[s] entrusted to [them]” (DR 6-101 [A] [3], 22 NYCRR 1200.30 [a] [3]), enjoins them to assist in "securing] and protecting] available legal rights” (EC 7-1) and requires them to represent their clients as zealously as the "bounds of the law” permit (Canon 7). All of the latter ethical and disciplinary considerations are implicated when a client’s lawsuit is undermined — or even defeated — as a consequence of carelessness in the service of process.

Our conclusion is also supported by the perceptions of the lay public and the average client, who may reasonably assume that all of the tasks associated with the commencement of an action, including its formal initiation through service of process, will be performed either by the attorney or someone acting under the attorney’s direction. While it may be a common practice among attorneys to retain outside agencies like Fischer’s to assist them in effecting service, that custom is not necessarily one of which the general public is aware. Even where a client is expressly made aware that a process serving agency will be retained, it is unlikely that the client will understand or appreciate that the process serving agency’s legal status as an "independent contractor” could render the retained attorney immune from liability for the agency’s negligence. Under established principles, the client’s reasonable expectations and beliefs about who will render a particular service are a significant factor in identifying duties that should be deemed to be "nondelegable” (see, Restatement, op. cit., § 429; see also, Feliberty v Damon, supra, at 120).

Finally, we conclude that permitting lawyers to transfer their duty of care to process servers would be contrary to sound public policy. In this State, licensed attorneys have been granted an exclusive franchise to practice law, with the understanding that they have both the specialized knowledge and the character required to represent clients in a competent, diligent and careful manner. Under this system, lawyers are authorized to hold themselves out as being uniquely qualified to manage their clients’ legal affairs, a task that unquestionably includes the commencement of lawsuits. While it is true that the State also licenses nonlawyers to perform certain discrete, law-related tasks such as service of process (see, General Business Law art 8), the existence of that licensing system certainly does not evince a governmental intent to relieve attorneys of the responsibilities implicit in their franchise. To the contrary, the purpose of the licensing system for process servers is to "combat a continuing and pervasive problem of unscrupulous service practices” in order to protect defendants who might otherwise be deprived of their day in court or be victimized by "fraudulent default judgments” (Matter of Barr v Department of Consumer Affairs, 70 NY2d 821, 822; accord, Givens, Practice Commentary, McKinney’s Cons Laws of NY, Book 19, General Business Law art 8, at 128-130). That purpose is obviously unrelated to the entirely separate goal of assuring clients who are would-be plaintiffs that their process will be timely served in a manner that complies with the complex requirements of CPLR articles 2 and 3, as well as with the numerous other statutory provisions relating to commencement of actions (see, e.g., Business Corporation Law §§ 304-308) and the formidable body of case law illuminating those statutes. The responsibility for achieving that goal — and the liability for negligent failures to achieve it —must remain squarely on the shoulders of trained and licensed attorneys who, as members of a "learned profession,” alone have the necessary knowledge and experience to protect their clients’ rights (cf, Feliberty v Damon, supra, at 120 [refusing to impose nondelegable duty to provide competent defense on insurers, because "insurer necessarily must rely on independent counsel to conduct the litigation” and is, in fact, barred from interfering with independent counsel’s "professional judgment”]).

Before closing, we note that, contrary to the concurrer’s suggestion that our ruling has a far broader application, the nondelegable duty of care that we have recognized in this case is limited to the discrete and unique function of commencing an action through service of process. Furthermore, the duty extends only to clients who have retained an attorney for the purpose of commencing a lawsuit. We do not decide here the entirely separate question of an attorney’s liability for the wrongs that a retained process server may commit against a potential defendant or another third party (see, e.g., Balzano v Lublin, 162 AD2d 252; Bockian v Esanu Katsky Korins & Siger, 124 Misc 2d 607, supra; see also, Kersten v Van Grack, Axelson & Williamowsky, 92 Md App 466, 608 A2d 1270). Nor do we consider the right of an attorney who has been held liable for the negligence of a retained process server to pursue whatever contractual or tort remedies that the attorney may have against that process server. We hold only that an attorney has a nondelegable duty to his or her clients to exercise due care in the service of process and that, accordingly, an attorney may be held liable to the client for negligent service of process, even though the task may have been "farmed out” to an independent contractor.

In view of this conclusion, it is evident that the courts below erred in granting defendants’ motion for summary judgment dismissing the complaint. If there was negligence in the effort to effect service of process in plaintiff’s failed action against Dr. Lauersen, plaintiff is entitled to hold defendant vicariously liable, and she may recover in damages if she can demonstrate that this negligence was the proximate cause of any pecuniary injury she sustained. We note, however, that plaintiff is not herself entitled to summary judgment on the liability question at this point in the litigation, since she still must demonstrate both that the retained process server acted negligently and that she would have prevailed in the underlying action against Lauersen if the negligence had not occurred (see, e.g., Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730). Thus, the denial of plaintiff’s cross motion for partial summary judgment was proper. Finally, since we are holding that neither party is entitled to summary judgment on plaintiff’s single cause of action for legal malpractice, we need not now consider the viability of the other theories that plaintiff has advanced to support defendants’ liability. At this point in the litigation, it suffices to hold that defendants’ nondelegable duty to plaintiff provides a legally viable basis for imposing liability on them.

Accordingly, the order of the Appellate Division should be modified, with costs to plaintiff, by denying defendants’ motion for summary judgment dismissing the complaint and, as modified, affirmed.

Bellacosa, J.

(concurring). While I agree with the Court’s result, I am unable to join in the broad rationale upon which it is premised. This case should be more prudently resolved on the narrower ground that questions of fact exist as to whether the defendant law firm was negligent in choosing its process server and in failing to obtain an automatic 60-day extension under CPLR 203 (b) (5).

The remedial rescue device, CPLR 203 (b) (5), which has been described as the "skyscraper on the statute of limitations landscape” (Siegel, NY Practice, at 56 [2d ed 1991]), was enacted to aid attorneys, such as the defendants, whose clients are faced with the imminent running of the Statute of Limitations. The allegations with respect to defendants’ failure to take advantage of this statutory remedy raise questions of fact barring dismissal of the plaintiffs complaint.

Also, since attorneys may be liable for their own negligence in selecting a particular process server, and since plaintiff alleges that the entity chosen by defendants, Fischer’s Service Bureau, Inc., had a reputation for poor and sloppy service, there are fact issues here which suffice to defeat defendants’ summary judgment motion for dismissal.

The Court’s result is reached instead by classifying service of process, for the first time, as a nondelegable duty of the attorney. This rationale opens up an unrealistic and undue liability channel not only with respect to the relationship of attorneys to process servers but, by analogous extension, also to many other relationships in which attorneys retain specialists and experts in the discharge of their professional obligations to clients.

This broad new rule requires, in effect, that an attorney inquire beyond any facially sufficient affidavit of service of process to verify personally the facts that underlie it. This contradicts the justification and practicality for the long-standing practice of utilizing and relying on independent process servers. For practical purposes, it will compel attorneys to assume the role of process servers themselves. While many large firms already have such in-house operatives, attorneys practicing in small firms and solo practitioners may now also have no choice but to hire in-house process servers so that the lawyers can always maintain direct supervision and control over them. No other way is left to avoid potential liability to disgruntled or harmed clients. Since the ordinary question-of-fact path is available through which plaintiffs cause may proceed beyond summary judgment, I see no justification or necessity for paving this boulevard route to that same result.

Notably, the rule that would make an attorney liable for the acts of an outside process server on the basis announced in this case also conflicts with the useful teachings of several of our lower courts and at least one sibling State. They continue the classification of "outside” process servers as independent contractors (see, e.g., Balzano v Lublin, 162 AD2d 252, 253; Bockian v Esanu Katsky Korins & Siger, 124 Misc 2d 607, 610-611; Kersten v Van Grack, Axelson & Williamowsky, 92 Md App 466, 608 A2d 1270). This approach is prudent because attorneys in these situations have no effective control over the particular manner in which selected process servers do their jobs. The long-standing classification of process servers as independent contractors should be retained, with the result that attorneys would not be liable to plaintiff on a respondeat superior basis for the negligent acts of process servers (Rosenberg v Equitable Life Assur. Socy., 79 NY2d 663, 668; Feliberty v Damon, 72 NY2d 112, 118).

Accordingly, I would modify to deny defendants’ motion for summary judgment but on the more narrowly expressed basis.

Chief Judge Kaye and Judges Simons, Hancock, Jr., and Smith concur with Judge Titone; Judge Bellacosa concurs in result in a separate opinion.

Order modified, etc.

      . Notably, although often classified as an "exception,” this category may not be a true exception to the general rule, since it concerns the employer’s liability for its own acts or omissions rather than its vicarious liability for the acts and omissions of the contractor.

      . A fourth category — i.e., cases in which the employer is held liable for risks "inherent in the work itself’ — has been identified by one noted commentator (Prosser and Keeton, op. cit., at 515-516).

      . Contrary to the concurrer’s concern about the practical implications of our holding, we find nothing untoward or "unrealistic” about a rule that holds practicing attorneys responsible to their clients for the negligence of the process servers they choose to retain. Further, we see no sound reason for permitting attorneys who happen to use outside process servers to escape liability while attorneys who use in-house staff to perform the same functions can be held liable under ordinary principles of respondeat superior.

      . In response to the concurrence, however, we find it necessary to note that the theory of liability we have approved herein is not interchangeable with the theories of liability the concurrer would permit, since the latter requires plaintiff to prove that defendants were negligent in their own right while the former does not. Thus, contrary to the concurrer’s contention, this case may not be resolved on the narrower ground the concurrence advances without the need to address the vicarious liability question that plaintiff’s appeal presents.


author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Alfred Davis, Appellant.
    Argued March 24, 1993;
    decided May 4, 1993

      POINTS OF COUNSEL

      Emily D. Troxell, New York City, Ira Mickenberg and Neal Gerber & Eisenberg of the Illinois Bar, admitted pro hac vice, for appellant.
    I. The People violated appellant’s right to due process by knowingly and wrongfully denying the existence of Brady material, allowing false evidence to be presented at trial, and incorporating the false evidence into their summation argument. (United States v Bagley, 473 US 667; People v Savvides, 1 NY2d 554; People v Vilardi, 76 NY2d 67; Brady v Maryland, 373 US 83; Giglio v United States, 405 US 150; People v Novoa, 70 NY2d 490; People v Cwikla, 46 NY2d 434; United States v Agurs, 427 US 97; People v Davis, 160 AD2d 664; People v Simonds, 140 AD2d 236.) II. The People’s failure to produce Rosario material concerning their Wade hearing witness until two days after the Wade hearing had concluded requires reversal of appellant’s conviction. (People v Ranghelle, 69 NY2d 56; People v Malinsky, 15 NY2d 86; People v Rosario, 9 NY2d 286; People v Dymond, 130 AD2d 799; People v Brigante, 115 AD2d 547; People v Pizzali, 159 AD2d 652; People v Wright, 135 AD2d 594; People v Perez [Angel], 65 NY2d 154; People v Perez [Jairo] 104 AD2d 454; People v Jones, 70 NY2d 547.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (James M. McGuire and Mark Dwyer of counsel), for respondent.
    I. Defendant is entitled to no relief on account of his claim based on Brady v Maryland and its New York counterparts. (People v Vilardi, 76 NY2d 67; People v Smyers, 167 AD2d 773, 77 NY2d 967; People v Nedrick, 166 AD2d 725.) II. Defendant’s Rosario claim concerning the People’s failure to produce the detective’s memo book at the Wade hearing is not preserved for review and, in any event, does not warrant reversal. (People v Simonds, 73 NY2d 945; People v Burts, 78 NY2d 20.)
   OPINION OF THE COURT

Bellacosa, J.

The crux of the case against defendant, who was convicted of assault and robbery following a jury trial, was the accuracy of the victim’s identification. The dispositive issue on this appeal, here by leave of a Judge of this Court, is a claimed Brady violation consisting of failure of the prosecution to turn over requested potentially exculpatory material (Brady v Maryland, 373 US 83; People v Vilardi, 76 NY2d 67). We conclude that a prejudicial violation was committed by the People and that the order of the Appellate Division affirming the judgment of conviction should be reversed and a new trial ordered.

L

Viewing the evidence in a light most favorable to the People, we note that between 3:30 and 4:00 a.m. on November 4, 1987, Orlando Quintero was walking home from work when he approached a group of young men congregated in front of the Prince George Hotel, located near Bellevue Hospital in Manhattan. As Quintero drew close, defendant Davis rose from a milk crate he was sitting on and threw it at the victim, who began to run away. About 10 men chased after him and beat him, in an attack lasting about seven minutes. They stole his jewelry, wallet and other belongings, and then fled into the hotel. Quintero promptly reported the incident to the police and was taken to Bellevue Hospital for treatment. One week later, Quintero returned to the hotel with police officers and identified four men — defendant Davis, Mark Hunter, Mark Sweeper and Albert Johnson — as among those who had attacked him. They were arrested and indicted for robbery and assault.

In June 1988, the indictment against Hunter was dismissed. According to the People’s Recommendation for Dismissal, signed by Assistant District Attorney Lee, they were induced to conclude that they could not prove the case against Hunter beyond a reasonable doubt because:

An "aided card” from the 13th Precinct indicated that Hunter was taken to Bellevue Hospital with an injury to his right knee at 12:54 a.m. on November 4.
• Bellevue records indicated that Hunter registered at the Bellevue emergency room at 2:04 a.m. and that he was seen at 5:30 a.m. and treated for an injured knee. He was released at 6:45 a.m.
• If a patient were called by a treating doctor after being registered and did not answer, the patient’s records would usually be marked with an "N/A”. No such indication appears on Hunter’s medical records.

At appellant Davis’ Wade hearing, his counsel requested "that the District Attorney turn over [Hunter’s] hospital record”. The People, represented by Assistant District Attorney Lee, argued that Hunter’s medical record was not relevant to the identification of defendant and was not Brady material. Defendant’s counsel then requested a stipulation that Hunter was in the hospital at the time of the crime. Lee refused and stated that the hospital record did not conclusively establish that Hunter was actually in the emergency room at that time. Lee then said that the emergency room records indicated that Hunter was "registered at about midnight, I believe, and was treated at six a.m. But the hospital doesn’t keep records of where people are in between registration and treatment.” Davis’ counsel and Lee continued to haggle, leading the court to urge that they stipulate to the essential facts. Ultimately, the stipulation now at issue was agreed to, and provided "that Mark Hunter entered Bellevue Hospital at Midnight November 3rd to 4th, 1987, and received medical treatment at 6 a.m. on November 4, 1987 for a twisted knee.”

Appellant Davis and his remaining codefendants, Sweeper and Johnson, were tried together in July 1988. The only evidence presented by the defense was the stipulation, which was read to the jury by the court following an explanation of the legal significance of a stipulation. Defendant’s counsel attempted in summation to discredit the victim’s identification of all defendants, arguing from the premise that even the People acted on the belief that the victim may have misidentified Hunter.

Assistant District Attorney Lee’s summation emphasized that Quintero had made accurate identifications. The salient portion relating to the stipulation arising out of the Hunter hospital record is as follows:

"I’m sorry to disappoint [defendant’s counsel], but I’m going to tell you to look closely at that stipulation. Listen to the wording. Mr. Hunter registered at the hospital at Midnight. Mark Hunter was treated at six a.m. There is no record. The hospital cannot prove, defense counsel cannot show, no one can prove that he was in that hospital for those six hours, six hours for a twisted knee before he even saw a doctor. * * * [T]he People have not stipulated to the fact that he was there for six hours and therefore we have a bad identification. The medical record would show he registered and then six hours later got treated, but there is nothing in that record about did he leave or not. You’ve all been in emergency rooms. There is no control over you. Once you register, you can walk out, you can come back, you can do whatever you want; they don’t care.
"I submit to you, ladies and gentlemen, Mark Hunter was there that night. He registered for a twisted knee. He got bored after a couple of hours. No doctor was coming, no nurse had seen him. There is no paper work to show he had talked to anyone. He got bored and he limped back, walked back to the Prince George Hotel. It’s a mere five blocks, a walk that would take him five, ten minutes at the most. * * *
"Ladies and gentlemen, I submit he was there, he got bored. It’s the middle of the night. He goes back to the Prince George to see what his friends are doing. What they’re doing is they’re hanging out. He hangs out with them. He takes part in a robbery with them. Later on, after things have calmed down, the police have left, he goes back to Bellevue and says now take a look at my knee, and he gets treated six whole hours later. * * * It took them six hours for a nurse even to see Mark Hunter. Where was he? Maybe he wasn’t there when his name got called the first couple of times.”

The jury was given the case around 1:30 p.m. and deliberated and heard readbacks until 10:00 p.m., and then again the next morning. On the first night of deliberations, the jury requested explanations of the charges and readbacks of various parts of Quintero’s testimony, including portions where he described the taking of his camera bag by Hunter. The next morning, the jury asked for another readback of the testimony relating to the camera bag. That afternoon it returned guilty verdicts against the three defendants for robbery and assault. Before us now is only the Appellate Division affirmance of the conviction against Davis. That Court concluded:

"[E]ven if the undisclosed facts — which the People have acknowledged were known to the Trial Assistant — had been produced for use by the defense at trial, it is unlikely that a different result would have been reached in this trial. (See, People v Simonds, [140 AD2d 236, affd 73 NY2d 945].) In this context, we are significantly influenced by the fact that the jury was aware, through stipulation, that the complainant may have erroneously identified the former codefendant” (People v Davis, 160 AD2d 664, 664-665).

Hi

Material inaccuracies, which were allowed into the stipulation by the People, expanded the time frame between Hunter’s arrival at the hospital and the time he was treated. Furthermore, the failure to include in the stipulation the precise times of his registration and release is also the responsibility of the People. Finally, the stipulation did not disclose the information known to the prosecutor that if a patient waiting in the emergency room did not answer the call of a treating doctor, the patient’s record would usually be marked with an "N/A”. Hunter’s records contained no "N/A”. All the accurate, relevant data was in the "best evidence” hospital records and procedures in the People’s possession, known to the People but withheld. These features of the substitute modality — the stipulation — prompted and facilitated the eventual speculation fed to the jury that Hunter had more time than was actually so to leave Bellevue, commit the crime, and return.

Hunter’s hospital records and the hospital policy concerning "N/A” notations are "evidence favorable to an accused” within the scope of the Brady exculpatory material rule (Brady v Maryland, 373 US, at 87, supra; see also, People v Vilardi, 76 NY2d 67, supra), because to the extent Quintero misidentified Hunter, the likelihood of misidentification of defendant is affected. Furthermore, defense counsel’s pretrial "specific request” for "Brady material” concerning Hunter’s treatment in the emergency room put "the prosecutor on notice that there is particular evidence the defense does not have and believes to be important” (People v Vilardi, supra, at 73-74).

The People’s failure to comply accurately and completely with this defense Brady demand, coupled with their affirmative substitution of the misleading stipulation, entitles appellant to a new trial. The People’s emphasis during summation on the erroneous time periods recited in the stipulation gave the jury a materially altered framework in which to evaluate the key issue of Davis’ identification. This is especially troublesome with regard to the speculation that maybe Hunter "wasn’t [in the emergency room] when his name got called the first couple of times” and "there is nothing in that record about did he leave or not”. This facet underscores the "reasonably possible” effect of this evidence on the jury in deliberating and resolving the central issue of the accuracy of the victim’s identification of any one of the original suspects arrested, including appellant. We conclude that there is a "reasonable possibility” that had the potentially exculpatory material been provided accurately and completely, the result of the trial might have been different.

We agree with the Appellate Division that the claimed Rosario issue was unpreserved. Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Kaye and Judges Simons, Titone and Hancock, Jr., concur; Judge Smith taking no part.

Order reversed, etc.


author: Hancock, Jr., J. Bellacosa, J.

text:
    Jacqueline S., an Infant, by Ludovina S., Her Mother and Natural Guardian, et al., Appellants, v City of New York, Defendant, and New York City Housing Authority, Respondent. Robert Morgenthau, Nonparty Respondent.
    Argued March 31, 1993;
    decided May 6, 1993

      POINTS OF COUNSEL

      Salzman, Ingber & Winer, New York City (Norman E. Frowley of counsel), for appellants.
    I. Mere compliance with a section of the Multiple Dwelling Law was not conclusive evidence of due care and did not absolve the Housing Authority of responsibility as a matter of law. (Waters v New York City Hous. Auth., 69 NY2d 225; Miller v State of New York, 62 NY2d 506; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Van Gaasbeck v Webatuck Cent. School Dist., 21 NY2d 239; Sherman v Lowenstein & Sons, 28 AD2d 922; Phillips v Roux Labs., 286 App Div 549; Curry v New York City Hous. Auth., 77 AD2d 534; Trimarco v Klein, 56 NY2d 98; Sherman v Concourse Realty Corp., 47 AD2d 134.) II. The Court below erred in finding that there was an absence of experiential evidence indicating the reasonable foreseeability of an unauthorized intrusion into the building involved through the open front door and resulting in injuries occasioned by criminal activities on the roof of the building. (Keenan v Dayton Beach

      Park No. 1 Corp., 175 AD2d 862; Skaria v State of New York, 110 Misc 2d 711; Brownstein v Edison, 103 Misc 2d 316; Iannelli v Powers, 114 AD2d 157; Sherman v Concourse Realty Corp., 47 AD2d 134; Camacho v Edelman, 176 AD2d 453; Tarter v Schildkraut, 151 AD2d 414, 74 NY2d 616; Loeser v Nathan Hale Gardens, 73 AD2d 187; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Miller v State of New York, 62 NY2d 506.)

      Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Anthony J. Mercorella, Harry P. Brett and Richard E. Lerner of counsel), for respondent.
    I. The Legislature exempted owners of pre-1968 buildings from the duty set forth in Multiple Dwelling Law § 50-a to install self-locking entrance doors and intercom systems. (Robinson v New York City Hous. Auth., 150 AD2d 208.) II. The Housing Authority was under no common-law duty to install self-locking doors in the apartment entrances of the Wagner Houses. (Robinson v New York City Hous. Auth., 150 AD2d 208; Bonner v City of New York, 73 NY2d 930; Vitale v City of New York, 60 NY2d 861; Glick v City of New York, 53 AD2d 528, 42 NY2d 831; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Miller v State of New York, 62 NY2d 506; Sherman v Concourse Realty Corp., 47 AD2d 134; Skaria v State of New York, 110 Misc 2d 711; Brownstein v Edison, 103 Misc 2d 316; Huda v American Glucose Co., 154 NY 474.) III. Respondents seek to have this Court apply the wrong legal standard. (Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Miller v State of New York, 62 NY2d 506; Tarter v Schildkraut, 151 AD2d 414, 74 NY2d 616; Iannelli v Powers, 114 AD2d 157, 68 NY2d 604; Kazanoff v United States, 753 F Supp 1056; Basso v Miller, 40 NY2d 233; Hendricks v Kempler, 156 AD2d 425, 77 NY2d 808; Gill v New York City Hous. Auth., 130 AD2d 256.) IV. The Housing Authority lacked notice of risk of assault by third persons upon tenants of 2395 First Avenue. (Boltax v Joy Day Camp, 67 NY2d 617; Solomon v City of New York, 66 NY2d 1026; Akins v Glens Falls City School Dist., 53 NY2d 325; Bass v City of New York, 61 Misc 2d 465, 38 AD2d 407; Iannelli v Powers, 114 AD2d 157; Bizien v Port Auth. of States of N. Y. & N. J., 577 F Supp 1093; Muniz v Flohern, Inc., 155 AD2d 172; Pulka v Edelman, 40 NY2d 781; Miller v State of New York, 62 NY2d 506.) V. The Housing Authority is exempt from liability where, as here, its activities involve policy considerations which are governmental in nature. (Miller v State of New York, 62 NY2d 506; Weiner v Metropolitan

      Transp. Auth., 55 NY2d 175; Marilyn S. v City of New York, 134 AD2d 583, 73 NY2d 910; Bonner v City of New York, 73 NY2d 930; Cuffy v City of New York, 118 AD2d 1049, 68 NY2d 601, 69 NY2d 255, 70 NY2d 667; Sostre v City of New York Hous. Auth., 150 AD2d 766; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Kircher v City of Jamestown, 74 NY2d 251.)
   OPINION OF THE COURT

Hancock, Jr., J.

The plaintiff was a resident of one of several apartment buildings in a housing complex when she was abducted and raped by an assailant inside her building. In opposing defendant’s motion for summary judgment, plaintiff produced evidence of violent criminal activity in the housing complex and of dangerous conditions in the building where she resided. The Appellate Division granted defendant summary judgment, however, holding that plaintiffs allegations contained insufficient "experiential evidence” of criminal activity to raise a triable issue as to foreseeability of crime in her own building. We conclude that the evidence adduced by plaintiff was sufficient to raise a triable issue of foreseeability so as to require denial of summary judgment. There should, therefore, be a reversal.

I.

In September 1988, plaintiff, a 14-year-old resident of the Wagner Houses public housing project in upper Manhattan, was abducted in the lobby of her apartment building, taken to a utility room on the roof of the building and raped. In her deposition testimony, Housing Authority Police Officer Juliet Jackson stated that she had responded to several reports of forcible rape in the Wagner Houses, which "usually occur on the roof or roof landing” of the buildings, and to "20 or more” forcible robberies. Jackson could not recall in which buildings the crimes occurred, but did not exclude plaintiffs. In addition, Nelson Santoni, the assistant superintendent of the Wagner Houses testified that empty crack vials, needles, syringes and drug paraphernalia were found "[throughout the entire development, roof landing, stairways, lobbies, corridors, basement, grounds, [and] outside ground areas”. During the period he was at the Wagner Houses, he found "numerous drug addicts on the roof * * * [and that] they would either sleep on the roof landing, sleep on the stairway, [or] in the corridors. You find them all over the place.” Intruders, according to Santoni, could be found "all over the place”. Officer Jackson stated that when she found people on the roof, "[t]hey’re usually doing drugs”. Indeed, Jackson testified that she always approached the door to a roof with her gun drawn because "you don’t know what is on the other side of that door”.

Despite these conditions, as well as numerous complaints from tenants, neither the door to the lobby nor the door to the utility room on the roof was locked and no security personnel were stationed in the building. Carl Schwartz, the housing assistant of the Wagner Houses stated that "[a]s long as I have been in Wagner Houses, which is approximately a year, none of [the entrance doors] had locks”. Officer Jackson said that it was known that the utility room on the roof of plaintiff’s building had a mattress in it and that she had never seen a lock on the door to the room. When asked why these doors were kept open and were not locked, Jackson responded, "You have to ask management that”.

A referendum vote had been held in 1988 pursuant to Multiple Dwelling Law § 50-a (3) regarding installation of self-closing, self-locking doors and an intercommunication system, but a majority of the tenants of the 22-building complex rejected the plan. No evidence was submitted, however, as to whether a majority of the tenants in plaintiff’s building had rejected the proposed security measures.

Plaintiff commenced the present action alleging breach of a common-law duty to provide adequate security. Supreme Court denied defendant’s motion and plaintiff’s cross motion for summary judgment. On defendant’s appeal, the Appellate Division reversed, holding that defendant had fully complied with its statutory obligations under the Multiple Dwelling Law and that plaintiff had failed to establish a common-law duty to provide greater security because there was no showing of a specific instance of crime occurring in plaintiff’s building. The Court stated:

"A landlord does have a common law duty to provide security to its tenants. However, that duty rests upon the foreseeability of the particular danger which proximately causes the harm * * * A Housing Authority police officer did testify as to her responding to calls on forcible rapes and robberies at the Wagner Houses prior to this occasion, but could recall no specific instance at this particular apartment building. The Housing Authority is not an insurer of plaintiffs safety * * * Without experiential evidence indicating the reasonable foreseeability of such a danger, a landlord’s duty, under common law standards, will require only ' "minimal” ’ safety precautions” (182 AD2d 514, 515 [emphasis added]).

Since, according to the Appellate Division, defendant was relieved of any statutory obligation by the tenants’ vote, that Court reversed and granted summary judgment dismissing the complaint.

II.

We discuss first defendant’s contention that the requirements of the Multiple Dwelling Law supplant the common-law duty to provide adequate security and constitute the exclusive basis for liability. Multiple Dwelling Law § 50-a (3) mandates installation of self-closing, self-locking doors and an intercommunication system in buildings constructed before 1968 upon the request or consent of the tenants "occupying a majority of all the apartments within the structure comprising the multiple dwelling affected” (emphasis added). If a majority of tenants of the particular building reject the installation of such devices, then no installation is mandated by the statute. Contrary to defendant’s claim, however, nothing in section 50-a (3) suggests that its terms supersede common-law duties and obligations such that a negative vote of the tenants relieves a landlord from any obligation to install security devices. Irrespective of the absence of a statutory obligation, the landlord remains subject to the common-law duty to take minimal precautions to protect tenants from foreseeable harm. A negative vote of the tenants in a particular building has no effect other than absolving the owner of the mandatory duty that Multiple Dwelling Law § 50-a (3) might otherwise impose.

Turning to defendant’s common-law duty, we reject the argument that plaintiff’s allegations are insufficient to raise a triable issue as to the foreseeability of the violent assault on plaintiff merely because the housing police could not recall whether the violent criminal activity known to have occurred in the Wagner Houses took place inside the specific Wagner House structure where plaintiff resided. We have never adopted the restrictive rule urged by defendant and apparently embraced by the Appellate Division: that to establish the foreseeable danger from criminal activity necessary for liability, the operative proof must be limited to crimes actually occurring in the specific building where the attack took place (see, Miller v State of New York, 62 NY2d 506; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; see generally, Prosser and Keeton, Torts § 63, at 442-443 [5th ed]; Annotation, Landlord’s Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 ALR3d 331). In Nallan v Helmsley-Spear, Inc., which recognized the duty of landlords to take steps to minimize foreseeable danger from criminal acts, we cast foreseeability more generally — i.e., in terms of "past experience 'that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of the visitor’ ” (id., at 519).

There is no requirement in Nallan or Miller that the past experience relied on to establish foreseeability be of criminal activity at the exact location where plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected. Indeed, in Miller, the occurrence of criminal activity in plaintiff’s college dormitory was held to be foreseeable, in part, because of different criminal conduct occurring in other dormitories on the same campus (see, Miller, supra, at 509). Whether knowledge of criminal activities occurring at various points within a unified public housing complex, such as Wagner Houses, can be sufficient to make injury to a person in one of the buildings foreseeable, must depend on the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question (see, e.g., Keenan v Dayton Beach Park No. 1 Corp., 175 AD2d 862; see also, Trentacost v Brussel, 82 NJ 214, 412 A2d 436; Czerwinski v Sunrise Point Condominium, 540 So 2d 199 [Fla App]; Paterson v Deeb, 472 So 2d 1210 [Fla App]; Bayshore Co. v Pruitt, 175 Ga App 679, 334 SE2d 213).

We conclude that enough has been shown to raise a triable issue as to foreseeability. Plaintiff’s submissions showed, among other things, that there was evidence of drug-related criminal activity in her building and that vagrants and drug addicts readily gained access to and loitered in the corridors, stairwells and on the roof of plaintiff’s building. The Housing Authority police, it appeared, had responded to numerous reports of forcible rapes and robberies in the Wagner Houses and Officer Jackson could not recall whether some of these violent crimes had occurred in plaintiff’s building. The Housing Authority was aware that neither the doors to the lobbies of the buildings nor the doors to the utility rooms on the roofs were equipped with locks.

Contrary to the assertions of the dissent, our decision does not impose a "burden of impossible practical and functional dimensions” (see, dissenting opn, at 296). Nor does it extend the rule of Nallan and Miller (see, id., at 297). We hold merely that, in the circumstances, given the Authority’s conceded failure to supply even the most rudimentary security — e.g., locks for the entrances — it was error to grant summary judgment on the question of foreseeability of danger from a violent crime (see, Phillips v Kantor & Co., 31 NY2d 307, 311 [summary judgment should be denied if there is a doubt as to whether there is a material, triable issue of fact]).

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant New York City Housing Authority’s motion for summary judgment denied.

Bellacosa, J.

(dissenting). I respectfully dissent and vote to affirm the Appellate Division order dismissing plaintiff’s case. The ultimate effect of the Court’s ruling will be to render the defendant, New York City Housing Authority, an unlimited insurer of the safety of its premises against urban crime. The legal, fiscal and policy consequences of such a rule, which imposes a sweeping negligence liability burden of impossible practical and functional dimensions, are unwarranted.

A landlord is generally not responsible for guaranteeing the safety of tenants against the criminal acts of third parties. However, where a private, commercial landlord has sufficient notice of relevant criminal activities bearing temporally and proximately on injuries to a plaintiff, this Court has recognized a narrow duty based on a traditional foreseeability nexus. The duty requires the landowner to take reasonable precautionary measures to protect against or minimize the foreseeable risk, or suffer exposure to a jury resolution for its negligence (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520).

However, this Court has demarcated the limits of this duty by requiring that the record must establish that an owner "knows or has reason to know from past experience 'that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of [a tenant or] visitor’ ” (id., at 519). Questions necessarily evolve as to what quantum and particularity of related past criminal activities must be advanced to entitle an injured party to a jury consideration of this otherwise expansive and largely uncontrollable absorption of liability for the actions of third parties. For example, must not the foreseeable wrongdoing be shown to be at least of a similar kind of criminal activity to that for which damages are sought? How frequently must the similar criminal activity have occurred and at what proximate range of location and time?

This case dramatically widens the dimensions of the applicable rule in virtually every component of the formerly limiting details. For practical purposes, the new rule eliminates the boundaries that courts precedentially promulgated in their efforts to impose reasonable and appropriate limits. Under this case, there are no real qualifying components left to the wide-ranging duty. Indeed, the Court fails to provide a discernible test or set of criteria in this regard to guide the lower courts for the trial of this case or future cases (see, majority opn, at 295). They will be at a loss, as I am, to predict the instruction that should be given the jurors for their definitive and reasonable guidance.

Up to now, the Appellate Division had at least started to develop a sensible and workable formulation. Drawing on its efforts, the rule we might have adopted to govern this case is that a landlord’s duty to take reasonable precautionary measures against a risk of particularly foreseeable criminal conduct arises if there is temporally relevant, experiential evidence pointing to the likelihood of similar criminality in or at proximate locations to the premises at issue (see, Jacqueline S. v City of New York, 182 AD2d 514, 515; Iannelli v Powers, 114 AD2d 157, 162; Sherman v Concourse Realty Corp., 47 AD2d 134, 136). Such a rule would be fair and would help to pinpoint some boundaries on an otherwise virtually limitless landlord’s duty set against overwhelming social ills and criminal activities in the urban universe.

It should not be overlooked that in swinging this kind of liability door wide open in this case, the Court is doing so for the first time against a public municipal landlord charged with maintaining numerous multibuilding public housing projects such as this one, which extends over a 27-acre site in Manhattan. In that context, the Appellate Division’s balanced test seems more faithful to the limited rationale of Nallan v Helmsley-Spear, Inc. (50 NY2d 507, supra), the case which inaugurated this kind of liability in New York against commercial owners. The instant case moves light years away from the limited holdings and facts of Nallan and Miller v State of New York (62 NY2d 506).

For example, in Nallan, the plaintiff was shot by an unknown assailant as he was signing a guest registry in the unattended lobby of the defendant’s office building, where there had been 107 reported crimes in the 21-month period immediately preceding the shooting. On that record, this Court carefully circumscribed that "a rational jury could have found from the history of criminal activity in the other parts of the building that a criminal incident in the lobby was a significant, foreseeable possibility” (Nallan, supra, at 520 [emphasis added]). In diametric contrast, the record in this summary judgment case is barren of any documentation of relevant or similar violent criminal activity in or near the particular public housing building where the crime occurred. We do not know when or where any of the few alleged prior incidents occurred. The testimony of Housing Authority Police Officer Juliet Jackson indicates that in her nine years as an officer at the Wagner Houses, she had responded on five occasions to reports of rape and on 20 occasions to reports of robbery. However, she did not state in which buildings of the vast 22-building Wagner Houses project these crimes had occurred or when they occurred in relation to the criminal act at issue here. She had no recollection of any criminal activity in the particular building at issue. Other than the supposition that rapes "usually occur on the roof or roof landing,” the officer gave no evidence concerning the manner in which the previous crimes were perpetrated, a factor that should be of critical threshold weight in determining whether a duty rooted in foreseeability ought to be imposed here. There is no other evidence of violent crime offered by plaintiff to satisfy the limiting components of the Nallan rule, and I believe on this record and as a matter of policy we should uphold the grant of summary judgment dismissing plaintiff’s case.

Miller v State of New York (62 NY2d 506, supra) is also instructive. The plaintiff satisfied the required threshold showing by offering evidence that with respect to her own dormitory,

"there had been reports to campus security of men being present in the women’s bathroom. Claimant herself had complained twice to the Assistant Quad Manager of her dormitory area about nonresidents loitering in the dormitory lounges and hallways when they were not accompanied by resident students” (Miller, id., at 509).

Furthermore, in Miller, all of the dormitory doors were equipped with locks which the State, as a matter of policy, did not lock. As this Court noted, "the act complained of under the landlord theory of liability was the failure to lock the outer doors of the dormitory” (id., at 513), and the duty which was breached was the "duty to take the rather minimal security measure of keeping the dormitory doors locked” (id., at 514). Here, in contrast, self-locking entrance doors had never been installed on plaintiff’s building or in any of 22 buildings of the sprawling Wagner Houses Project.

Everyone shares the hope and desire that all feasible measures be taken to prevent the type of heinous crime against an innocent youngster that underlies this action. However, creating a cascade of public liability of the type imposed here under these circumstances is particularly ill-suited and ill-fated to redressing endemic urban ills and crimes. This ancient tort theory and common-law method of spreading risk and deterring negligent conduct does not work here. It is more likely in these circumstances instead to divert limited public funds, that might be invested in some safety measures and better public housing, into the payment of escalating tort settlements and judgments against "deep pocket” public landlords. This consequence will flow merely because they were impotent against the tide of criminal activity occurring just about anywhere in their vast premises and anywhere in or near vaster still New York City.

Chief Judge Kaye and Judges Simons, Titone and Smith concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . Although originally commenced against both the City of New York and the Housing Authority, action against the City was discontinued.

      . In pertinent part, section 50-a (3) requires that every multiple dwelling: "shall be equipped with automatic self-closing and self-locking doors, which doors shall be kept locked except when an attendant shall actually be on duty, and with the intercommunication system described in paragraph two of this section, provided that tenants occupying a majority of all the apartments within the structure comprising the multiple dwelling affected request or consent in writing to the installation of such doors and intercommunication system * * * The terms under which such costs may be recovered shall be the same as those prescribed by the local city housing rent agency * * * Such costs shall not be deemed to be 'rent’ as that term is limited and defined in the contract.”

      . Contrary to the Appellate Division’s conclusion, the record in this case does not substantiate defendant’s contention that a vote of the tenants in plaintiffs building did not trigger the obligation under Multiple Dwelling Law § 50-a (3). In its motion for summary judgment, the Housing Authority submitted a conclusory affidavit stating merely that the "tenants [of the Wagner Houses] rejected the installation of the aforementioned system by majority vote”. The Housing Authority provided neither a tally of the votes nor the results pertaining specifically to plaintiffs building. Without evidence that a majority of the tenants in the particular structure where plaintiff resided had rejected the security measures, it cannot be established that the referendum did not impose a statutory duty to install security devices.


author: Per Curiam.

text:
    James D. Lusenskas, Respondent, v Bernard M. Axelrod et al., Appellants.
    Decided May 11, 1993
    APPEARANCES OF COUNSEL

      Jeffrey Samel & Associates, New York City (David Samel of counsel), for appellants.

      Sullivan & Liapakis, P. C., New York City (Stephen C. Glosser and Ellen Creutz of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

In this action to recover damages for personal injury, defendants appeal pursuant to CPLR 5601 (c) from an order of the Appellate Division which reversed a judgment entered on a jury verdict for defendants and ordered a new trial. Defendants stipulate that, in the event of an affirmance, judgment absolute shall be entered against them on the issue of liability only. Thus, even if judgment absolute were entered against defendants, a trial to assess damages would still be required.

Under CPLR 5601 (c) an appeal to this Court will lie from a nonfinal order of the Appellate Division which grants a new trial if the appellant stipulates that an affirmance by this Court will result in an absolute judgment against him. Such a stipulation is, however, deemed illusory if the appellant would lose nothing in the event of this Court’s affirmance of the Appellate Division order. For example, in Goldberg v Elkom Co. (36 NY2d 914), the Appellate Division reversed a judgment of Supreme Court awarding plaintiffs no damages following a trial on that issue and granted a new trial on damages. Defendant took an appeal to this Court, stipulating to judgment absolute in the event of an affirmance. Because defendant did not thereby relinquish anything, as an affirmance by this Court would have left defendant with a determination of no damages against him, the stipulation was deemed illusory. In contrast, because the appealing defendants here would be relinquishing the possibility of being absolved from all liability if a new trial were to be held, the stipulation for judgment absolute on liability only cannot be viewed as illusory.

While the present stipulation is not illusory, it is insufficient in another respect. As established by Miller v Perillo (49 NY2d 1044), a stipulation for judgment absolute must also effect a final determination of the action as to both liability and damages. Otherwise, it frustrates the underlying purpose of the statute, which is to avoid prolonged litigation and multiple appeals (see, Judicial Council Comment to proposed Civ Prac Act § 589 [3], the predecessor to CPLR 5601 [c], 7th Ann Report of NY Jud Council, at 529). Thus, an appeal upon a stipulation for judgment absolute on liability only does not lie, if damages remain to be tried. To the extent that Brown v Poritzky (30 NY2d 289) holds to the contrary, it is overruled.

The appeal should, therefore, be dismissed, and the motion for a stay dismissed as academic.

On the Court’s own motion, appeal dismissed, without costs. Motion for a stay dismissed as academic.

       In Miller v Perillo, the defendants-appellants stipulated to judgment absolute on liability only. To the extent that the entry in Miller indicates that such a stipulation is illusory, it is misleading and should be disregarded. However, the operative significance of Miller is the requirement that the proposed stipulation finally determine both liability and damages, and in this respect the continuing viability of its holding is affirmed.