Ramirez v New York City Hous. Auth.

Ramirez v New York City Hous. Auth. 2015 NY Slip Op 02410 Decided on March 24, 2015 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 March 24, 2015
Mazzarelli, J.P., Friedman, Sweeny, Gische, Kapnick, JJ.
15326/05

[*1]14585 Sonia Ramirez, etc., et al., Plaintiffs-Respondents,

v

New York City Housing Authority, Defendant-Appellant, The City of New York, et al., Defendants.

Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for appellant.

Miller, Montiel & Strano, P.C., Garden City (David M. Strano of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered May 29, 2014, which denied defendant New York City Housing Authority's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss plaintiff's claims arising from defendant's discretionary act in providing plaintiff's family the sixteenth floor apartment, and otherwise affirmed, without costs.

The motion court correctly determined that issues of fact exist concerning whether defendant had either actual or constructive notice of the elevators' perpetually broken down condition and whether defendant's negligence contributed to the malfunctioning of both elevators the night of plaintiff's decedent's death.

We modify the order, however, because plaintiff may not maintain a cause of action against defendant for its discretionary decision to grant plaintiff housing on the sixteenth floor of the apartment building. It is well settled that defendant has broad discretion to set, among other things, the terms of occupancy of its apartments (see e.g. Matter of Gutierrez v Rhea, 105 AD3d [*2]481, 486 [2013], lv denied 21 NY3d 861 [2013]).

We have considered the remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 24, 2015

CLERK