Parelman-Farber v Shao

[*1] Parelman-Farber v Shao 2009 NY Slip Op 51144(U) [23 Misc 3d 147(A)] Decided on June 8, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 8, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-304 Q C.

Nicole A. Parelman-Farber a/k/a NICOLE A. SKLAR, Respondent,

against

Stanford Shao a/k/a ZENG XING SHAO, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered October 25, 2007. The order granted plaintiff's motion for partial summary judgment on the issue of liability and set the matter down for trial on the issue of damages.

Order reversed without costs and plaintiff's motion for partial summary judgment denied.

Plaintiff commenced this action to recover for damage to her cooperative apartment and personal property. It is undisputed that a pipe connected to the toilet in defendant's cooperative apartment leaked and water flooded plaintiff's premises located directly below defendant's premises. Plaintiff moved for partial summary judgment on the issue of liability. The Civil Court granted plaintiff's motion and set the matter down for a trial on damages. The court concluded that defendant was obligated to perform all duties imposed upon him pursuant to the proprietary lease and that defendant had failed to establish that the cooperative corporation was negligent.

We find, contrary to the determination of the Civil Court, that plaintiff failed to shift the burden of proof to defendant. Plaintiff's moving papers did not establish that defendant failed to exercise reasonable care in maintaining his premises. Furthermore, plaintiff did not demonstrate that defendant had actual or constructive notice of a defective condition involving this particular leak (see Griffin v 19-20 Indus. City Assoc. LLC, 37 AD3d 412, 413 [2007]). Accordingly, the order granting plaintiff's motion for partial summary judgment is reversed and plaintiff's motion denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: June 08, 2009