New Trial Required on Landlord's Liability for Rape

Tenant sued landlord after she was raped in her apartment. When tenant moved into the apartment in 1985, she asked landlord to put a lock on her kitchen window. Landlord didn't do so. The assault took place in early 1987, when an intruder entered tenant's apartment through that window. The trial court instructed the jury that landlord could be liable if there was no lock on the window, in violation of the City's building code, or if landlord violated a general warranty of habitability. The court ruled for tenant, and landlord appealed. The appeals court found that the trial court's jury instructions were improper. The apartment house wasn't necessarily subject to the building code because it was built in 1873. Tenant would have to prove that significant alterations were done to the building after Dec. 6, 1968, the effective date of the building code section requiring window locks. A new trial was necessary to determine this issue. Also, violation of the warranty of habitability isn't a reason to find landlord negligent.

[Smith v. McCain: NYLJ, p. 24, col. 4 (12/2/92) (App. T. 2 Dept.; Monteleone, JP, Aronin, Scholnick, JJ)].