Delgardio v Davis

Delgardio v Davis 2011 NY Slip Op 06017 Decided on July 19, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 19, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RANDALL T. ENG
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2010-12129
(Index No. 100189/09)

[*1]Gina Delgardio, et al., plaintiffs-respondents,

v

Jose Davis, et al., defendants-respondents, Island Condo Management Corp., appellant.




Vincent D. McNamara, East Norwich, N.Y. (Michael S. Seltzer and
Anthony Marino of counsel), for appellant.
Desimone, Aviles, Shorter & Oxamendi, LLP, New York, N.Y.
(Benjamin A. Shatzky of counsel), for
plaintiffs-respondents.
Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success,
N.Y. [Marshall D. Sweetbaum], of
counsel), for defendant-respondent
Rose A. Ciccone.


DECISION & ORDER

In an action to recover damages for injury to property, the defendant Island Condo Management Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated September 22, 2010, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs and the respondents Jose Davis and Betty Davis, and the motion of the defendant Island Condo Management Corp. for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

The plaintiffs rented a first floor condominium unit from its individual owner. The unit above the plaintiffs' apartment was owned by the defendants Jose Davis and Betty Davis (hereinafter together the Davis defendants), who had a washer and dryer in their unit, which they owned and maintained. The Davis defendants' washing machine hose broke, allegedly causing a flood in the plaintiffs' apartment. As a result, the plaintiffs commenced this action against, among others, the defendant Island Condo Management Corp. (hereinafter Island Condo), which managed the condominium complex.

Liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property (see Wail v City of New York, 71 AD3d 1134; Kydd v Daarta Realty Corp., 60 AD3d 997; Livichusca v M & T Mtge. Co., 49 AD3d 822). The defendant Island Condo established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it did not own, use, control, or make special use of the Davis defendants' unit and that it had no duty to maintain the Davis defendants' washing machine, [*2]including its hose (see Alvarez v Prospect Hosp., 68 NY2d 320). In opposition, no triable issue of fact was raised (id.). Accordingly, the Supreme Court should have granted Island Condo's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
DILLON, J.P., ENG, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court