Eaderesto v 22 Leroy Owners Corp

Eaderesto v 22 Leroy Owners Corp 2012 NY Slip Op 08429 Decided on December 6, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2012
Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, Feinman, JJ.
8749 104954/08

[*1]Jerry Eaderesto, Plaintiff-Respondent,

v

22 Leroy Owners Corp, et al., Defendants-Appellants.




Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of
counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of
counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 21, 2012, which denied defendants' motion to vacate a self-executing order of preclusion against them, and for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of vacating the preclusion order, and otherwise affirmed, without costs.

The motion court erred in denying that part of defendants' motion to vacate the self-executing preclusion order (see generally Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]). The record shows that defendants provided a reasonable excuse for their default and subsequent 45-day delay in complying with the order, as the handling attorney in a two-partner firm had been stricken with a serious illness. Defendants also demonstrated a meritorious defense to the action by presenting evidence that plaintiff remained in the shower in defendants' building despite knowing that the water was too hot.

However, the court correctly found that triable issues of fact exist as to whether defendants negligently failed to maintain the mixer on the building's boiler in a reasonably safe condition, and had notice of excessively hot water in the premises (see Simmons v Sacchetti, 15 NY3d 797 [2010]; Sawchuk v 335 Realty 58 Assoc., 44 AD3d 532 [1st Dept 2007]). There is also a triable issue as to whether plaintiff's conduct of remaining in the shower to shave, with the [*2]water pointed away, when he knew the water to be overly hot, and becoming burned when he fainted from an unrelated illness, constituted a superseding cause of his injuries (see Simmons at 798; Sawchuck at 532).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2012

CLERK