Print Works v Westchester Sq. Assoc., LLC

[*1] Print Works v Westchester Sq. Assoc., LLC 2005 NY Slip Op 52267(U) [11 Misc 3d 1053(A)] Decided on October 21, 2005 Supreme Court, Bronx County Billings, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2005
Supreme Court, Bronx County

Print Works, Plaintiff,

against

Westchester Square Associates, LLC, Defendant.



24964/2001



For Plaintiff

Ellen P. Peppard Esq.

Law Offices of Harry Hertzberg

1526 Williamsbridge Road, Bronx, NY 10461

For Defendant

Amy N. Davidoff Esq.

Abrams, Gorelick, Friedman & Jacobson, P.C.

115 Broadway, New York, NY 10006

Lucy Billings, J.

Plaintiff sues to recover damages to his business machinery, stock, and inventory sustained from a ceiling collapse caused by a water leak July 8, 2000, in premises plaintiff rented from defendant. Defendant owner moves for summary judgment dismissing the complaint. C.P.L.R. §§ 3211(a); 3212(b). Since the leak that plaintiff claims it reported to defendant's agent occurred more than three years before the flooding for which plaintiff sues here, defendant claims the prior occurrence was too long ago to constitute notice of the condition that damaged plaintiff. As explained below, however long ago the prior leak occurred, without evidence of repair, evidence of a building employee's awareness of the prior leak raises factual issues as to the building owner's notice of an unrepaired defective condition.

For defendant to be liable for a defect in defendant's premises that the owner did not create, plaintiff must show that the owner had actual or constructive notice of the defect. Golden v. Manhasset Condominium, 2 AD3d 345, 347 (1st Dep't 2003); Dunaif v. Alrose Holding Co., 299 AD2d 159 (1st Dep't 2002). Thus, at trial, plaintiff bears the ultimate burden to establish that defendant had actual or constructive notice of the leaky condition that caused the ceiling collapse and never repaired the leaky condition before it resulted in damage to plaintiff's property. Figueroa v. Goetz, 5 AD3d 164, 165 (1st Dep't 2004). On defendant's summary judgment motion, however, defendant bears the initial burden to show that defendant lacked notice of that condition. George v. New York City Tr. Auth., 306 AD2d 160, 161 (1st Dep't 2003); Showverer v. Allerton Assoc., 306 AD2d 144 (1st Dep't 2003); Bonifacio v. 910-930 S. Blvd., 295 AD2d 86, 91 (1st Dep't 2002); Giuffrida v. Metro N. Commuter R. R. [*2]Co., 279 AD2d 403, 404 (1st Dep't 2001). See D'Ambra v. New York City Tr. Auth., 16 AD3d 101 (1st Dep't 2005); Arnold v. New York City Hous. Auth., 296 AD2d 355 (1st Dep't 2002); Frank v. Time Equities, 292 AD2d 186, 187 (1st Dep't 2002).

In support of the motion, defendant presents the deposition testimony of Eli Marin, plaintiff's principal, that he never experienced any plumbing problems in the leased premises. While this evidence may show the absence of plumbing defects in the leased space that defendant might have known about, Marin also testified that within six months after executing the parties' lease in October 1996, he observed a water leak originating from the space above plaintiff and reported this condition to "Hector," whom Marin believed to be the superintendent. Aff. of Amy N. Davidoff, Ex. 4 at 21. Considering that testimony, the absence of plumbing problems in plaintiff's leased space does not demonstrate the lack of a defective condition in the building affecting plaintiff's space of which defendant had or should have had notice. Although defendant's attorney denies defendant's awareness of any defective condition involving leaking pipes, any complaints received regarding such a condition, or repairs to any leaks, an affirmation by an attorney lacking personal knowledge does not constitute admissible evidence to establish entitlement to summary judgment. Bennett v. New York City Tr. Auth., 4 AD3d 265, 267 (1st Dep't 2004), aff'd, 3 NY3d 745 (2004).

In reply, defendant presents the affidavit of Ralph Della Cava, defendant's principal, who handled repairs when the ceiling collapsed. While denying that anyone named Hector was the superintendent, Della Cava admits that he employed Hector Giraldo as a cleaner of the building, who was responsible for informing Della Cava of any complaints received concerning the premises. Marin's report of the leak to a building employee named "Hector" thus contradicts defendant's denial of complaints regarding leaks and the need for repairs to the pipes, albeit not on personal knowledge, and raises factual issues whether this employee's knowledge of the leak in 1997 may, based on Della Cava's admission, be imputed to defendant. Radnay v. 1036 Park Corp., 17 AD3d 106, 108 (1st Dep't 2005); Bonifacio v. 910-930 S. Blvd., 295 AD2d at 91. See Coleman v. New York City Hous. Auth., 12 AD3d 281 (1st Dep't 2004); Banks v. Odd Job Trading Corp., 299 AD2d 248, 249 (1st Dep't 2002).

Although this leak occurred in 1997, more than three years before the flooding that caused plaintiff's claimed damages, defendant presents no evidence of repairing the leaky condition that caused the flooding. Diver v. McClinch Equip. Corp., 305 AD2d 533, 534 (2d Dep't 2003). Nor does defendant present any evidence of inspections since the prior flood to assure that the condition had been remedied or otherwise had subsided. George v. New York City Tr. Auth., 306 AD2d at 161; Showverer v. Allerton Assoc., 306 AD2d 144; Banks v. Odd Job Trading Corp., 299 AD2d 248, 249 (1st Dep't 2002). Therefore defendant fails to demonstrate that the 2000 flood emanated from a new condition of which defendant lacked notice and which thus would entitle [*3]defendant to judgment as a matter of law. D'Ambra v. New York City Tr. Auth., 16 AD3d 101; George v. New York City Tr. Auth., 306 AD2d at 161; Showverer v. Allerton Assoc., 306 AD2d 144; Diver v. McClinch Equip. Corp., 305 AD2d at 534. Without defendant's evidence of repair, Marin's testimony regarding the prior flood and a building employee's awareness of that occurrence raises material factual issues regarding defendant's notice of an unrepaired defective condition. Radnay v. 1036 Park Corp., 17 AD3d at 108; George v. New York City Tr. Auth., 306 AD2d at 161; Showverer v. Allerton Assoc., 306 AD2d 144. See Banks v. Odd Job Trading Corp., 299 AD2d at 249.

Defendant also relies on a provision in the lease exempting defendant from liability for damages from water and leaks, unless caused by defendant's negligence. Aff. of Amy M. Davidoff, Ex. 7 ¶ 12. Since plaintiff showed defendant's negligence based on defendant's actual or constructive notice of the defective condition, and defendant never showed repair of the condition, this lease provision does not preclude defendant's liability. NY Gen. Oblig. Law § 5-321; The Gap v. Red Apple Cos., 282 AD2d 119, 124 (1st Dep't 2001).

Consequently, the court denies defendant's motion for summary judgment dismissing the complaint. C.P.L.R. § 3212(b).

DATED: October 21, 2005

_____________________________

LUCY BILLINGS, J.S.C.