Velez v Geomar Realty LLC

[*1] Velez v Geomar Realty LLC 2009 NY Slip Op 51405(U) [24 Misc 3d 1210(A)] Decided on July 1, 2009 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2009
Supreme Court, Kings County

Aren Velez, an infant by his Father and Natural Guardian, Matthew Velez and Matthew Velez, individually, Plaintiffs,

against

Geomar Realty LLC, and Embassy Management Ltd., Defendants.



33634/06



Plaintiffs were represented by Gus J. Constantinidis, Esq. of Constantinidis & Associates, P.C. Defendants were represented by Brian J. Greenfield, Esq. of the Law Offices of Greenfield & Ruhl.

Jack M. Battaglia, J.

Plaintiff Matthew Velez, for himself and his infant son, plaintiff Aren Velez, alleges that on October 27, 2006 Aren sustained personal injuries, primarily first- and second- degree burns, caused by an unsafe condition at premises located at 277 Humboldt Street, Brooklyn, which condition defendants Geomar Realty LLC and Embassy Management Ltd. negligently created or failed to remedy. With this motion, Defendants seek an order, pursuant to CPLR 3212, dismissing the Verified Complaint.

According to the deposition testimony of Aren's mother, nonparty Andrea Vargas, she had just completed bathing Aren, who was then 15 months old, in the kitchen sink, and was mopping the floor of water spilled from the bath, when Aren turned the water on with the single lever provided for that purpose and for adjusting the flow and temperature of the water. Aren allegedly was burned by the flow and temperature of the water until Ms. Vargas could turn the water off. A Verified Bill of Particulars alleges that Defendants were negligent in "allowing water at temperatures dangerously hot to reach tenants [sic] apartments; in failing to inspect the mixing valve; in failing to monitor the water temperature being delivered to tenants [sic] apartment [sic]; in failing to use appropriate safety valves; in failing to install required safety equipment, specifically failure to install a recirculating hot water system . . . , [and] in failing to maintain safe temperatures." (Verified Bill of Particulars,¶ 13.)

Defendants' contention that they are entitled to judgment as a matter of law is based upon interrelated grounds. "It is undisputed that: a. There is no evidence as to the water temperature of the water at the time of the accident; and b. Both parents concede that the water coming out of [*2]the faucet could be regulated (through the use of the lever) to the proper temperature." (Affirmation in Support of Motion for Summary Judgment, ¶ 32.) "There is no evidence of any statutory or regulatory violation by defendant and no evidence that the temperature of the water violated defendant's common law standard of care, which requires the maintenance of reasonably safe conditions in the building." (Id., ¶ 33.) Defendants cite in support Basso v Miller (40 NY2d 233 [1976]) and Williams v Jeffmar Mgmt. Corp. (31 AD3d 344 [1st Dept 2006].)

As evidence in support of their motion, Defendants submit the deposition testimony of Mr. Velez, Ms. Vargas, and Jose Feliciano, the superintendent of the building at 277 Humboldt. No affidavit is submitted that would provide expert opinion that the temperature of the water and related devices complied with all applicable statutory, regulatory, and industry standards, such that it could be concluded that Defendants did not breach any duty of reasonable care owed to Plaintiffs. At oral argument, Defendants' counsel made clear that Defendants are challenging the existence of any duty to Plaintiffs with respect to the temperature of the water flowing from the faucet at the kitchen sink. They are not contending, on this motion at least, that they satisfied any such duty, or that an act or omission of Ms. Vargas, negligent or not, was the sole proximate cause of Aren's injuries.

The Court notes, in the first instance, that Defendants cannot succeed on this motion by simply asserting that there is "no evidence" as to one or more essential elements of Plaintiffs' claim. "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004] [quoting Larkin v Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dept 1992)].) A defendant must establish, at least prima facie, the basis for an affirmative defense (see CPLR 3018 [b]), or must negate, at least prima facie, an essential element of the plaintiff's cause of action. (See Gonzalez v Beacon Term. Assoc., L.P., 48 AD3d 518, 519 [2d Dept 2008]; Velasquez v Gomez, 44 AD3d 649, 650-51 [2d Dept 2007]; Restrepo v Rockland Corp., 38 AD3d 742, 743 [2d Dept 2007]; Pappalardo v Long Is. R.R. Co., 36 AD3d 878, 880 [2d Dept 2007]; England v Vacri Construction Corp., 24 AD3d 1122, 1124 [3d Dept 2005]; Calderone v Town of Cortlandt, 15 AD3d 602, 602-03 [2d Dept 2005].) In a premises liability case, the owner of the premises, "has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it." (See DeFalco v BJ's Wholesale Club, Inc., 38 AD3d 824, 825 [2d Dept 2007] [internal quotation marks and citations omitted].)

In order to succeed on their motion, therefore, Defendants must establish that, on any view of Plaintiffs' allegations, Defendants did not owe them a duty to maintain the temperature of the water flowing from the kitchen faucet below a particular level.

In Basso v Miller (40 NY2d 233), the Court of Appeals adopted for premises liability actions "a single standard of reasonable care under the circumstances whereby forseeability shall be a measure of liability," a standard "no different than that applied in the usual negligence [*3]action." (See id. at 241.) "A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." (Id. [quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 (DC Cir 1972)].) "[C]onsiderations of who plaintiff is and what his purpose is upon the land are factors which, if known, may be included in arriving at what would be reasonable care under the circumstances." (Id.) Specifically, "[t]he owner of a multiple dwelling owes a duty to persons on its premises to maintain them in a reasonably safe condition." (Mas v Two Bridges Assocs., 75 NY2d 680, 687 [1990].) "This duty is nondelegable and a party injured by the owner's failure to fulfill it may recover from the owner even though the responsibility for maintenance has been transferred to another." (Id.)

In Williams v Jeffmar Mgmt. Corp. (31 AD3d 344), the infant plaintiff, two years old at the time of the incident, suffered second- and third-degree burns caused by excessively hot bath water. The child's mother pleaded guilty to the crime of assault in the second degree for her part in the incident, but "the nature of the conduct she admitted to [was] not as a matter of law so extraordinary under the circumstances' as to be a superseding event that broke the causal link between defendant's alleged negligence and plaintiff's injuries." (Id. at 345-46 [quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 (1980)].) Nonetheless, the First Department panel determined that the defendant was entitled to summary judgment.

The court determined first, based in part on expert opinion submitted by the defendant, that there was no statutory or regulatory maximum water temperature standard applicable to the case before it. (See id. at 346.) A Building Code provision that requires a maximum hot water setting of 120 degrees did not apply, because the provision applied to individual bath and shower valves and the plaintiff's apartment was not equipped with such valves, and was not required to be equipped with them because of when the building was built. Here, the infant Plaintiff's injuries occurred in the kitchen sink, and, likewise, would not be the result of a violation of the Building Code provision.

The court then turned to the defendant's common-law duty, and whether a hot water setting of 140 degrees would violate that duty. Because it is the heart of Defendants' contention on this motion, the court's entire determination on this issue is provided:

"Nor would a hot water temperature setting of 140 degrees violate defendant's common-law standard of care, which requires the maintenance of reasonably safe conditions in the building (see Basso v Miller, 40 NY2d 233, 241, 352 NE2d 868, 386 NYS2d 564 [1976].) Nothing in plaintiff's submissions permits a finding that a building's hot water mixing valve must be set at a maximum of 120 degrees, or that a maximum setting of 140 degrees is unsafe. A building's maximum hot water is not intended to be at a temperature appropriate for bathing. Indeed, as defendant's expert pointed out, keeping hot water in excess of 120 degrees (as required by Administrative Code § 27-2031) aids in killing certain microorganisms when washing dishes or clothing. [*4]

Moreover, a certain amount of temperature fluctuation must be expected. Just as it would be unreasonable for a tenant to assume that the temperature of water emerging from the hot water tap alone is safe for bathing, so would it be unreasonable to assume that the water's temperature upon first turning the taps will remain unchanged a minute or two later. People using hot water, especially when bathing infants and toddlers, must be expected to monitor the mixture of hot and cold water to ensure a temperature that is safe for bathing. A landlord cannot be required to adjust the hot water temperature in order to protect children from adults who fail to do so." (Id. at 346-47.)

It is important to again note that, unlike here, the Williams court had before it an expert's report that provided evidentiary support for its conclusions. Otherwise, it is difficult to know what to make of the quoted statements, particularly since they are not accompanied by citation to authority, other than Basso v Miller, that might provide elucidation. Nonetheless, prior authority, as well as decisions after Williams, require the conclusion that the "no duty" rule that Defendants argue for does not exist.

Just seven months before Williams, the First Department decided Lindsey v H.B. Assoc., L.L.C. (24 AD3d 274 [1st Dept 2005].) There, the court affirmed denial of a defendant's motion for summary judgment in an action alleging scalding of an infant plaintiff by bath water. The court held that "[i]ssues of fact as to defendant's negligence in maintaining the building's hot water system [were] raised by the affidavit of the infant's treating physician that the water temperature must have been approximately 150 degrees to have caused the second- and third-degree burns that the infant sustained." (Id. at 274.) The court cited a Third Department decision (see Tirella v American Props. Team, Inc., 145 AD2d 724 [3d Dept 1988]) that had held that "[t]he affidavit of plaintiff's physician stat[ing] that the water temperature must have been at least 149 degrees Fahrenheit to cause plaintiff's burns . . . creat[ed] a triable issue of fact as to the negligence of the owners and manager in their control and maintenance of the hot water system" (id. at 725.) (See Lindsey v H.B. Assoc., L.L.C., 24 AD3d at 274.) There is no indication in either Lindsey or the cited Third Department decision that a regulatory standard was at play.

It is particularly noteworthy that three of the Justices on the panel that decided Lindsey were also on the panel that decided Williams.

Decisions in the First Department subsequent to Williams have resolved a defendant's motion for summary judgment on notice grounds. (See Flores v Langsam Property Serv. Corp., 2009 NY Slip Op 4747, * 1 [1st Dept June 11, 2009]; Sawchuk v 335 Realty 58 Assocs., 44 AD3d 532, 532 [1st Dept 2007] ["notice of the unsafe hot water condition"]; Baumgardner v Rizzo, 35 AD3d 223, 224 [1st Dept 2006] ["notice concerning the water being too hot"].) The suggestion, of course, is that a duty exists to maintain the temperature of water supplied to tenants at a level that is not unreasonably dangerous.

In Carlos v 395 E. 151 St., LLC (41 AD3d 193 [1st Dept 2007]), the First Department reversed summary judgment for a defendant where the plaintiff alleged that she was scalded by [*5]hot water in her bathtub. Although concluding, as it did in Williams,that the Building Code maximum setting of 120 degrees did not apply because of when the building was built (see id. at 195), the court stated that "Section 78 (1) of the Multiple Dwelling Law requires the owners of multiple dwellings to keep their premises in good repair,' and Section 77 (4) of the same statute specifically requires that plumbing and drainage system be maintained in good repair' " (see id.) The court concluded that "a question of fact exist[ed] as to whether defendants had notice of a problem with the building's hot water system prior to plaintiff's injury." (See id. at 196.)

Then in LaTronica v F.N.G. Realty Corp. (47 AD3d 550 [1st Dept 2008]), the First Department reversed a denial of summary judgment for a defendant "where the plaintiff allegedly sustained second- and third-degree burns . . . as a result of a sudden burst of scalding water emitted from the cold water faucet in his bathtub" (id.) The court does not describe the defendant's prima facie showing, but holds that "Plaintiff failed to raise a triable issue of fact whether defendants kept the water at an unsafe temperature because this claim is based on the expert's non-probative conclusion that the temperature of the water ranged from 103 to 139 degrees'." (See id. at 551.) Williams is cited, and characterized as holding that the "landlord had no duty to ensure that hot water piped into apartments was not more than 120 degrees." (See id.)

In reply, Defendants have called the Court's attention to Savory v 2120 Realty Co. LLC (2009 NY Slip Op 1517 [1st Dept March 5, 2009]), a 3-2 decision by the First Department that it has withdrawn from publication. The decision will not be considered, therefore, except to note that the Second Department apparently disagreed with it. (See Shkolnik v Longo, 2009 NY Slip Op 4887 [2d Dept June 9, 2009].)

Unless Williams is understood as silently overruling prior First Department authority, it can be fairly understood as holding only that, absent a statutory or regulatory standard or equipment requirement, a landlord's liability cannot be premised solely on a hot water temperature setting of 140 degrees where "there is only plaintiff's expert's bare assertion that absent negligence, water above 120 degrees Fahrenheit should not have been discharged into the hot water system and apartments'." (See Williams v Jeffmar Mgmt. Corp., 31 AD3d at 346.)

In any event, this Court sits in the Second Department, and must follow Second Department authority to the extent it might differ from authority in another Department. (See Mountain View Coach Lines v Storms, 102 AD3d 663, 664 [2d Dept 1984]; see also Mohen v Stepanov, 59 AD3d 502, 504 [2d Dept 2009].)

In a decision directly on point, Parker v New York City Hous. Auth. (203 AD2d 345 [2d Dept 1994]), where an "infant plaintiff was allegedly burned by scalding water when his brother accidently turned off the cold water in the sink in which the infant was being bathed," "it [could not] be said, as a matter of law, that [the landlord's] alleged negligence, in supplying excessively hot water to the infant plaintiff's apartment, was not a proximate cause of the infant's injuries" (id. at 345-46.) The Second Department subsequently denied summary judgment to the lessor of a house "regarding the plaintiff's negligence claim insofar as asserted against [the lessor] to the extent that it is predicated on the allegedly hot water temperature in the plaintiff's home." (See [*6]Allen v Wyandanch Homes & Prop. Dev. Corp., 298 AD2d 474, 476 [2d Dept 2002]; see also Rodriguez v Sung Hi Kim, 42 AD3d 442, 442 [2d Dept 2007] ["second and third degree burns when the water in the shower . . . suddenly became very hot"].)

Particularly interesting, because it was decided after the First Department's decision in Williams, is the Second Department's decision in Rosencrans v Kiselak (52 AD3d 492 [2d Dept 2008]), where an infant plaintiff sustained third-degree burns while washing her hands in the bathroom sink in her apartment. Denying the defendants' motion for summary judgment, the court held that "plaintiffs raised a triable issue of fact as to whether the [defendants] failed to maintain the premises in a reasonably safe condition" with a physician's report stating that "the water temperature must have been more than 140 degrees Fahrenheit to have caused the infant plaintiff's injuries, and deposition testimony revealed that the building's hot water heater was set at 150 to 155 degrees Fahrenheit one day after the accident." (See id. at 492-93.) In support of its holding, the court cited Lindsey v H.B. Assoc., L.L.C. (24 AD3d 274), Parker v New York City Hous. Auth. (203 AD2d 345), and Tirella v American Props. Team, Inc. (145 AD2d 724), all discussed above. The court did not cite Willliams, although Williams had been decided two years earlier.

It might be that Rosencrans and Williams can be reconciled as to their results, if not as to their statements. In Rosencrans, the evidence submitted on the motion supported an allegation of water temperature in excess of 140 degrees, whereas in Williams it did not. (See also Daughtery v City of New York, 137 AD2d 441, 442 [1st Dept 1988] [evidence of water temperature "in the range of 176 degrees Fahrenheit"].) This Court must, in any event, follow the Second Department.

The Court notes again that Defendants do not contend, and make no showing, that the conduct of Ms. Vargas was the sole proximate cause of Aren's injuries. Perhaps not surprisingly, issues of proximate cause figure prominently in the hot-water cases, usually raised by the conduct of the injured plaintiff or, where a child is injured, the conduct of a parent or other third party. (See Rivera v City of New York, 11 NY2d 856, 857 [1962]; Rosencrans v Kiselak, 52 AD3d at 493; LaTronica v F.N.G. Realty Corp., 47 AD3d at 551; Williams v Jeffmar Mgmt. Corp., 31 AD3d at 345-46; Lindsey v H.B. Assoc., L.L.C., 24 AD3d at 274; Colon v Mandelbaum, 244 AD2d 292, 293 [1st Dept 1997]; Parker v New York City Hous. Auth., 203 AD2d at 346; Tirella v American Props. Team, Inc., 145 AD2d at 725.) For present purposes, suffice it to note further that the relationship between duty and proximate causation as elements of common-law negligence (see Luina v Katharine Gibbs School NY, 37 AD3d 555, 556 [2d Dept 2007]), and the role of foreseeability in determining each, are among the more challenging issues in the law of torts, which is called upon to address the most common and uncommon of circumstances. (See Afflick v Port Auth. of NY and N.J., 5 Misc 3d 1002 [A], 2004 NY Slip Op 51160 [U] [Civ Ct, Kings County 2004].)

Finally, the Court notes that Plaintiffs' Verified Bill of Particulars includes allegations of dangerous conditions in addition to the hot water temperature in itself, and that specify the [*7]absence of or defects in the equipment in the plumbing system. (See Shkolnik v Longo, 2009 NY Slip Op 4887 [2d Dept June 9, 2009]; [mixing valve]; Terry v Danisi Fuel Oil Co., Inc., 40 AD3d 1072, 1073 [2d Dept 2007] [same]; Chorostecka v Kaczar, 6 AD3d 643, 643-44 [2d Dept 2004] [shower head]; Allen v Wyandanch Homes & Prop. Dev. Corp., 298 AD2d at 403 [hot water valve/hot water handle]; Vouniozos v Helmsley-Spear, Inc., 257 AD2d 440, 441 [1st Dept 1999] [pipe]; Daughtery v City of New York, 137 AD2d 441, 441 [1st Dept 1988] [hot water handle]; Muhaymin v Negron, 86 AD2d 836, 836 [1st Dept 1982] ["bathroom appliances"].) Defendants make no showing that they are entitled to judgment as a matter of law with respect to these allegations.

Defendants' motion is denied.

July 1, 2009___________________

Jack M. Battaglia

Justice, Supreme Court