Goodwin v Sam One Realty, LLC

[*1] Goodwin v Sam One Realty, LLC 2009 NY Slip Op 52083(U) [25 Misc 3d 1213(A)] Decided on September 29, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2009
Supreme Court, Kings County

Marian Goodwin, Plaintiff,

against

Sam One Realty, LLC, Defendant.



41609/07



For Plaintiff:

Reid Wissner

325 Broadway

New York, NY 10007

212-406-9288

For Defendant:

Gannon, Rosenfarb, & Moscowitz

120 Broadway 30th floor

New York, NY 10271

212-655-5000

Francois A. Rivera, J.

By notice of motion filed on March 25, 2009, under motion sequence number two,

plaintiff Marian Goodwin (Goodwin) seeks an order granting summary judgment in her favor and against the defendant Sam One Realty, LLC (SOR) on the issue of liability. SOR opposes the motion.

BACKGROUND

On November 9, 2007, Goodwin commenced the instant action by filing a summons and verified complaint with the King's County Clerk's office. Issue was joined by SOR's verified answer dated February 7, 2008. Plaintiff's complaint and verified bill of particulars alleges the following facts. On October 19, 2007, plaintiff was a tenant of apartment 2C in a building owned by the defendant and located in Brooklyn, New York. [*2]The exact address of the building is intentionally omitted in consideration of plaintiff's privacy. On that date, the bathroom ceiling of the apartment collapsed, fell upon the plaintiff and injured her.

MOTION PAPERS

Goodwin's motion papers consists of an affirmation of her counsel and seven annexed exhibits. Exhibit A is an ambulance call report from the public records unit of the New York City Fire Department pertaining to the plaintiff. Exhibit B is eleven photograph images of the bathroom of apartment 2C. Exhibit C is a copy of the summons and complaint of the instant action. Exhibit D is SOR's verified answer. Exhibit E is plaintiff's verified bill of particulars. Exhibit F is the transcript of Plaintiff's deposition taken on January 14, 2009. Exhibit G is the transcript of the deposition of Abraham Brach, the manager of SOR's building, taken on February 12, 2009.

SOR's opposition papers consists of an affirmation of its counsel and three annexed exhibits. Exhibit A is a letter dated March 9, 2009, from Goodwin's counsel to SOR's counsel, referring to enclosed transcripts. The transcript are not included with the exhibit. Exhibit B is a letter dated March 17, 2009, from SOR's counsel to Abraham Brach pertaining to his deposition transcript. Exhibit C contains a cover letter dated May 1, 2009, from SOR's counsel to Goodwin's counsel referring to the annexed notarized signature page and correction sheet signed by Abraham Brach. The second item included is Brach's deposition transcripts dated February 12, 2009.

Goodwin has replied to SOR's opposition papers with an affirmation of counsel.

DISCUSSION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffrida v. Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923 [1993]).

In general, to impose liability for an injury caused by a ceiling collapsing "because of a leak, a plaintiff must show that the defendant had prior notice, actual or constructive, of the leak and that the leak was never repaired" (Figueroa v. Goetz, 5 AD3d 164, 165 [1st Dept. 2004]). A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected (Larsen v Congregation B'Nai Jeshurun of Staten Is., 29 AD3d 643 [2-Dept 2006]).

SOR contends that Goodwin's request for summary judgment should be denied [*3]because an unsigned and, therefore, inadmissible transcript of Abraham Brach was used to support the motion. SOR also avers that on May 1, 2009, Goodwin's counsel was provided with the notarized signature and correction sheet of Abraham Brach.

SOR's counsel, in paragraph nine, ten and eleven of his affirmation in opposition described Goodwin's deposition testimony and contends that the court should deemed the testimony incredible as a matter of law. In particular, Goodwin testified that she noticed that her bathroom ceiling was leaking in June, four months prior to the accident. She further testified that the leak continued about every other day, that she told the building super about it and showed him the leak and that no repairs were made before the collapse. She also testified that the debris which fell was dry and hard.

The deposition transcript of Abraham Brach used by Goodwin did not contain Brach's signature. The transcript, however, was certified by the stenotype reporter who took the deposition. SOR demonstrated that contrary to CPLR 3116(a) Goodwin used the unsigned transcript before giving Brach an and opportunity to review and sign it.However, there is no dispute that Brach is the manager of SOR's building and that SOR designated him as its witness for purpose of examination before trial. By doing so, SOR cloaked Brach with "speaking authority" (see Duran v Bushwick House LLC, 2009 WL 2611335 [NY Sup.] citing Tyrell v. WalMart Stores, Inc., 97 NY2d 650, 652 [2001]). As an individual with speaking authority, Goodwin may use the statements in the certified but unsigned transcript of Brach as admissions against SOR (see Duran v Bushwick House LLC, 2009 WL 2611335 [NY Sup.] citing Morchik v. Trinity School, 257 AD2d 534, 536 [1st Dept. 1999]).

SOR's opposition papers also contain Brach's deposition transcript and include his notarized signature and correction sheet. The question raised by these documents is whether the statements used by Goodwin in support of her motion were corrected by Brach. The affirmation of Goodwin's counsel quotes and gives the page and line number of the statements in Brach's transcript used to support of the motion. Brach's correction of his transcript sets forth the correction and the page and line number that he is correcting. Comparing the two, it is clear, that none of the statements used by Goodwin were changed or corrected by Brach.

Although, the court finds that Goodwin may use Brach's deposition transcript to support the motion, the motion must nevertheless be denied. Goodwin did not attempt to explain what caused the leaks that she observed above her bathroom ceiling. Goodwin also did not causally link any one of the leaks that she observed from her bathroom ceiling to the collapse. In the absence of any evidence on causation summary judgment must be denied.

Although the plaintiff did not raise it, the court did consider whether the doctrine of res ipsa loquitur could fill the gap in plaintiff's prima facie proof. To invoke the doctrine of res ipsa loquitur, the event (1) must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) must be caused by an agency or [*4]instrumentality within the exclusive control of the defendant; and (3) must not have been due to any voluntary action or contribution on the part of the plaintiff. SOR as the owner of a multiple dwelling does not have exclusive control over Goodwin's bathroom ceiling. Furthermore, a ceiling may leak for many reason that are not in a building owner's exclusive control. The simple act of a fellow tenant allowing a faucet to overflow may cause a leak to the ceiling of the room below. The doctrine is therefore not available to Goodwin.

In light of the foregoing, Goodwin has not met her burden to show SOR's liability for the ceiling collapse in question. Plaintiff's application for an order granting summary judgment in her favor and against SOR is denied.

The foregoing constitutes the decision and order of this court.



Francois A. Rivera, J.S.C.