Shafer v Edelstein

[*1] Shafer v Edelstein 2009 NY Slip Op 52649(U) [26 Misc 3d 1203(A)] Decided on November 30, 2009 Supreme Court, New York County Tolub, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2009
Supreme Court, New York County

Nathaniel Shafer, M.D., Plaintiff,

against

David Edelstein, SUSAN EDELSTEIN, AKAM ASSOCIATES, INC. and THE BOARD OF DIRECTORS OF 969 PARK AVENUE COOPERATIVE, Defendants.



115600/05

Walter B. Tolub, J.

Defendants David and Susan Edelstein (collectively, the "Edelsteins") move to renew their prior cross-motion for summary judgment (seq. no. 004) and, upon renewal, for summary judgment dismissing all claims and cross-claims against them.

Defendants Akam Associates, Inc. ("Akam") and The Board of Directors of 969 Park Avenue Corporation, s/h/a The Board of Directors of 969 Park Avenue Cooperative [FN1] (the "Board"), cross-move for summary judgment pursuant to CPLR 3212 dismissing plaintiff's complaint as against them.

Both the Edelsteins' motion and the cross-motion by Akam and the Board (collectively, the "Co-op") were initially denied by this court with leave to renew upon completion of discovery (mot. seq. no. 004). Discovery has now been concluded and plaintiff has filed a note of issue.

Plaintiff lives in apartment 2A of a cooperative building at 969 Park Avenue in Manhattan which is run by the Board. The Edelsteins live in apartment 3AB, on the floor above plaintiff. Both plaintiff and the Edelsteins are shareholders of the cooperative and proprietary [*2]lessees in the building. Mr. Edelstein is a member of the Board. Akam is the building's managing agent. This is but one of the actions pending between the parties.

Plaintiff brought this action to recover for personal injuries he allegedly incurred on Thursday, April 21, 2005, when he touched a metal countertop in his apartment which had become electrified after getting wet from leakage due to a flood in the Edelsteins' apartment. The flood was allegedly caused by a blockage in the A-line waste pipe.

Claims Against the Edelsteins

The Edelsteins' apartment was two apartments, 3A and 3B, which were combined into one by a prior owner. The Edelsteins performed extensive reconstruction of the combined apartment in 2003 and 2004 before moving in. Relevant to plaintiff, they converted what had been the kitchen in apartment 3A into a maid's room, bathroom and laundry. The renovation work done by the Edelsteins to that area above plaintiff's kitchen included "the floor in the entire area, the maid's room and laundry room as one, installed — redid the walls, painting, a window, reinstalled a window, probably a new toilet, washer, dryer, new sink" (David Edelstein's EBT, p 18, Edelsteins' exhibit F). Mr. Edelstein, who owned another apartment in the building since 1989, became a member of the Board in 2002, prior to his renovating apartment 3AB (id., pp 23-24, 71). The Edelsteins' proposed renovations were subsequently approved by the Board (id., pp 24, 56).

On the day in question, Mr. Edelstein first noticed water on the floor of his apartment "[b]etween 9:00 and 11:00" (id., p 28) or "between 9:00 and 10:00 at night" (id., p 77) and notified the doorman, who sent a handyman up a few minutes later. The handyman cleaned up the apartment (id., p 31) and shut off the water to the space (id., p 36).

According to plaintiff, he came home around 10 p.m. and went into the kitchen shortly thereafter to take his nightly medications (plaintiff's EBT, p 7 at Edelsteins' exhibit E), which were in a cabinet above a metal countertop on which was an electric radio plugged into an outlet above the countertop (id., pp 83, 87-88, 93). Plaintiff "reached down on the cabinet," got a shock on his left hand from the countertop, and fell to the floor on his back (id., p 9). He then noticed that the floor was wet and there was a continuous flow of water from the ceiling onto the cabinets above the electrified countertop (id., pp 13-14, 18-19). Plaintiff called the super, Roy Vandenberg ("Vandenberg"), who came to the apartment and explained that there was a leak in the upstairs apartment (id., pp 22-23). Plaintiff and his wife went away for the weekend, and when they returned on Sunday evening, water was still coming down from the kitchen ceiling. They called the fire department (911), which came to the apartment and shut off the electricity (id., pp 106-108; see also complaint, ¶ 14).

Despite plaintiff's testimony that the Edelsteins' renovations caused various leaks in his apartment (plaintiff's EBT, p 21) and the pendency of a consolidated action [FN2] against them and [*3]their contractor for damages to plaintiff's apartment, including a ceiling collapse, caused by their construction and other conduct neither of the Edelsteins had any recollection of prior flooding in their apartment or complaints about leaks or electric shocks (see id., pp 74-75; Susan Edelstein's EBT, pp 23, 26, at Edelsteins' exhibit G).

Plaintiff's claim against the Edelsteins is based on allegations that they were negligent in not warning plaintiff about the flood in apartment 3AB, creating the condition that led to that flood, and incorrectly reconfiguring and reconstructing the area above plaintiff's kitchen.

In support of their motion for summary judgment the Edelsteins argue that plaintiff cannot establish a breach of duty by them, because the Co-op, not the Edelsteins, had the duty to maintain the pipes.

"[I]n order for a plaintiff to establish a prima facie case of negligence, he or she must ... [adduce] proof that the defendant either had actual or constructive knowledge of the dangerous condition or proof that defendant caused the condition to be created.... [M]ere speculation [i]s inadequate to sustain the cause of action" (Acevedo v York Intern. Corp., 31 AD3d 255, 256 [1st Dept 2006], lv den 8 NY3d 803 [2007], citations omitted).

Mr. Edelstein testified that Vandenberg and the Edelsteins' contractor inspected the Edelsteins' apartment the morning after plaintiff's accident and each sent a plumber to investigate the leak (id., pp 40-41). Both agreed that "there was a backup in the main drain of the building going into the basement" (id., p 42). The blocked portion of the pipe was apparently replaced almost two years later (see id., pp 50), although according to the Edelsteins' counsel that could have been a subsequent broken pipe (see David supporting affirmation, fn 1).

The minutes of Board meetings submitted by plaintiff indicate that the Edelsteins went ahead with their reconstruction without prior Board approval. At the March 10, 2004, meeting of the Board, including Mr. Edelstein, "Mr. Bab agreed, on behalf of the Board, that the Corporation would not require Mr. Edelstein to remove the changes to the plumbing work in the kitchen area, which had been performed without the Board's authorization, unless they caused damage to the building or another shareholder's apartment" (3/10/04 minutes, p 3, exhibit C to Zinman's affidavit). The massive reconstruction work done in the Edelsteins' apartment in 2003-2004, which involved moving of the water risers found objectionable by the architects, was performed at least partially against building policy (see id., correspondence at exhibit D).

Akam's director of management services, Thomas Teeple ("Teeple"), whose job entails supervising apartment renovations in the building (Teeple EBT, p 9, Co-op's exhibit C), testified that the architects retained by Akam to evaluate all proposed renovations objected to the Edelsteins' original plans because they required moving a waste line (id., p 26). That objection gave way when Mr. Edelstein placed $20,000 in a second escrow account specifically to guard against something going wrong with the moved pipe. That escrow, unlike the standard $10,000 escrow they posted for the renovations in general, has not yet been returned to the Edelsteins (id., pp 33, 36, 40-41).

The foregoing is sufficient evidence to meet plaintiff's burden of showing there is a triable question of fact as to whether the Edelsteins created the defective condition (see Macaya v Merrill Lynch, Pierce, Fenner & Smith, Inc., 160 AD2d 402 [1st Dept 1990]).

The Edelsteins argue that they cannot be held liable for any defective conditions caused [*4]by their renovation work because they did not perform the work themselves but rather hired an independent contractor to do the work. In this context, the court notes that the Edelsteins have not commenced a third-party action against their independent contractor.

The primary case relied on by the Edelsteins in support of this argument, Rosenberg v Equitable Life Assurance Society of the United States (79 NY2d 663 [1992]), stands for the proposition that an employer is generally not vicariously liable for the negligence of an independent contractor. This tenet, most often invoked in connection with claims under Labor Law §§ 200, 240 and 241, has no bearing on the instant action. This is not a case where the plaintiff was injured tripping on construction debris left by the contractor. To the extent it is supported by the evidence, the negligence alleged by plaintiff involves not the execution of the plans by the contractors, but the plans themselves, conceived or at the very least approved, by the Edelsteins. "The general rule that an employer of an independent contractor is not liable for the negligence of the latter's servants, is subject to certain well-recognized exceptions, the principal ones being that such liability persists: (1) where the employer of the contractor is under a statutory duty to perform or guard the work, or (2) has assumed a contractual obligation to perform it, or is under a duty to keep the premises safe, or (3) where readily foreseeable danger is inherent in or created by the work assigned to the contractor" (May v 11 1/2 East 49th Street Co., 269 App Div 180, 182 [1st Dept 1945]). The Edelsteins knew there was a problem with the work they wanted done to the pipes when Akam's architects originally refused to approve the plans; the renovations were considered dangerous enough that the Co-op required them to place twice the customary sum in a second, special escrow account; and, both the proprietary lease and the building's house rules collectively (Edelsteins' exhibit L) require tenants to keep the premises in a safe condition.

Claims Against the Co-op

Plaintiff alleges that the Co-op was negligent in allowing the building pipes to be in such poor condition; in not notifying plaintiff of the flood in the apartment above; and, in allowing the Edelsteins to renovate their apartment in an unsafe manner, against the advice of the Co-op's architects, and without prior Board approval.

The Co-op argues that the claims against it must be dismissed because there is no evidence that it had notice of any prior issues with the waste pipe that leaked, nor with any condition that caused plaintiff's countertop to become electrically charged. Alternatively, the Co-op argues that the electric shock allegedly received by plaintiff when he touched the countertop was not a foreseeable consequence of any conduct alleged. It is the Co-op's position that plaintiff must bear the responsibility because plaintiff installed the countertop and under the proprietary lease he is responsible for all maintenance and repair of the electric wiring and outlets in his own unit.

In support of its cross-motion, the Co-op submits Vandenberg's affidavit, in which he avers that "on April 21, 2005, there was a blockage in the 'A' waste line of the building that caused water to overflow out of a toilet in unit 3A above plaintiff's unit, and that some of this water found its way into the plaintiff's unit below" (Vandenberg affidavit, ¶ 3, Co-op's exhibit D). The Co-op also submits Akam's incident report (Co-op's exhibit B), which states that the "[d]rain [*5]line for washing machine and toilet was clogged. This resulted in an overflow of water into apartment 2A." The Co-op has also purportedly submitted Teeple's affidavit, which this court cannot consider since the Co-op has submitted only the first and last pages — both unnumbered (exhibit C to cross-motion). However, the court will consider Teeple's deposition testimony on Akam's behalf (Edelsteins' exhibit H).

In opposition, plaintiff argues there are still triable issues of fact since (i) the Co-op had actual notice of the flood for at least an hour prior to plaintiff's accident but did not advise him of it (Teeple EBT, p 46; Vandenberg EBT, p 30); and, (ii) the Co-op had sufficient notice of the defective condition, since pipe overflows were a recurring condition in another part of the building (see Armstrong v Ogden Allied Facility Management, 281 AD2d 317, 318 [1st Dept 2001]) and construction activity in the Edelsteins' apartment had damaged plaintiff's ceiling six times prior to the accident at issue. Alternatively, plaintiff argues that he does not have to prove notice because the Co-op created the defective condition by allowing the Edelsteins to renovate and reconfigure their kitchen without prior Board approval, and negligence can be assumed under the doctrine of res ipsa loquitur.

Akam counters that the only notice it had was of a "water condition" in the Edelsteins' apartment, and it responded to that by turning off the water in the affected area of the apartment. Akam denies having notice of any problem in plaintiff's apartment or with his electrical outlet, or knowledge of any prior blockage problems with that line of waste pipe. Akam also denies any knowledge of a predisposition of plaintiff's metal countertop to become electrified when moist.

Akam dismisses plaintiff's expert's affidavit as pure conjecture with no probative value since he does not claim to have any expertise in the fields of plumbing or electrical engineering. The court agrees in part. In his affidavit, plaintiff's expert, Joseph M. Zinman ("Zinman"), avers that he is a professional engineer licensed in New York. He does not give any other qualifications to show his competency to testify as an expert in this matter, not even what kind of engineer he is. Instead, Zinman states that his curriculum vitae is annexed to his affidavit (Zinman affidavit, ¶ 1), but it is not. However, this infirmity of evidence is not fatal to plaintiff, since expert testimony is not necessary for plaintiff to make out a prima facie case of negligence (see Hendricks v Baksh, 46 AD3d 259, 259-260 [1st Dept 2007]). The court will consider the exhibits annexed to Zinman's affidavit.

"It is axiomatic that in order to establish a prima facie case of negligence, a plaintiff must show that the defendant was negligent and that such negligence was a substantial factor in bringing about the events which caused plaintiff's injuries" (Garcia v City of New York, 205 AD2d 49, 51 [1st Dept 1994], lv den 85 NY2d 810 [1995]). "A building owner cannot be liable for injuries caused to a person as a result of a defective condition on the premises unless it can be shown that the owner created the condition or that it had actual or constructive notice of the condition for such a reasonable period of time, that in the exercise of reasonable care, the owner should have corrected it" (Trujillo v Riverbay Corp., 153 AD2d 793, 794 [1st Dept 1989]; see also Leo v Mt. St. Michael Academy, 272 AD2d 145, 145-146 [1st Dept 2000]).

Although neither side has pinned down exactly what caused plaintiff's countertop to become electrified when it got wet, it is undisputed that the sine qua non of the accident was the clogged pipe which caused the flood. Vandenberg testified that he was present when the drainage pipe was opened up, and he observed that "[t]here was a buildup of metal or whatever is [*6]in a drainage pipe" which decreased the original 5-inch diameter of the pipe to 2 inches (EBT, pp 24-25, Edelsteins' exhibit I).

In his bill of particulars, plaintiff states that "[t]he defect that caused [him] to receive electric shocks and to fall was the flood of water and moisture emanating from the apartment above ... which, combined with an electrical fixture, caused the shock" (¶ 11, Edelsteins' exhibit C). This Rube Goldberg theory of causation, in which plaintiff's electric shock ensued from the confluence of the clogged waste pipe, the flood in the Edelsteins' apartment, the reconfiguration of the Edelsteins' kitchen, the vulnerability of plaintiff's ceiling, the metallic composition of plaintiff's countertop and an electric radio plugged into an outlet in the path of the water from the cabinets to the countertop, is nonetheless tenable since an accident can have more than one proximate cause (see Nunez v Recreation Rooms and Settlement, Inc., 229 AD2d 359, 360 [1st Dept 1996]).

While plaintiff getting an electric shock because of a leaky pipe in another apartment is certainly unusual, it is not, as defendants argue, unforeseeable as a matter of law. To establish negligence plaintiff does not need to prove that defendants "had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye" (Munsey v Webb, 231 US 150, 156 [1913], citations omitted). "[T]he precise manner in which the harm occurred need not be foreseeable, ... [as long as] the harm is within the class of reasonably foreseeable hazards" (Sanchez v State of New York, 99 NY2d 247, 252 [2002], citations omitted). It is possible for a plaintiff to recover when a defective condition causes electrification upon wetness (see, e.g., McCaughan v Home Savings Bank of City of Albany, 160 App Div 123 [3d Dept 1914]; Edick v Paul de Lima Co., Inc., 6 AD3d 864 [3d Dept 2004]; Comer v Titan Tool, Inc., n.o.r., 1996WL61765 [SDNY 1996]).

Plaintiff's primary hurdle in making out a prima facie case of negligence is showing defendants either created the problem or had sufficient notice of it to remedy it when plaintiff was shocked at most two hours after the flood in the Edelsteins' apartment was discovered.

While it would be rational for building staff to check plaintiff's apartment for leaks and water damage upon learning of the flood in the Edelsteins' apartment, they are not obligated to do so. Whether, as plaintiff argues, under the circumstances the Co-op had a separate duty to promptly warn plaintiff of the flood above to ensure his safety, and breached that duty by not notifying him within an hour, is a question that will have to be determined by the trier of fact (see Kimmell v Schaefer, 89 NY2d 257, 263 [1996]).

There is evidence to show that the Co-op was aware the building had plumbing problems. Mr. Edelstein confirmed that "[t]here's oftentimes discussions [by the Board] of plumbing, piping and water overflow and[sic] various parts of the building" (EBT, p 53, Edelsteins' exhibit F). Teeple testified that "routine repairs [are] made to the plumbing all the time" (Teeple EBT, p 19, Edelsteins' exhibit H). Finally, the minutes of Board meetings submitted by plaintiff indicate that the building had a lot of plumbing problems (exhibit C to Zinman's affidavit). As discussed above, there is also evidence that the Board allowed the Edelsteins to make at least some of the renovations without prior Board approval and against the advice of its architects.

Although it is apparently assumed by all parties that the countertop became electrified because a radio was plugged into an outlet in the path of the falling water, it does not appear that either the radio, the outlet, or the electrical wiring in plaintiff's kitchen has been tested for a [*7]defect.

The Co-op highly disingenuously contends that in the decision dated July 30, 2008 (mot. seq. no. 004), this court "noted" "that it was 'the apparent responsibility of the proprietary lease holder to maintain the electrical outlets in their respective unit'" and chides plaintiff's counsel for "ignor[ing] this uncontroverted fact" (Veilleux reply affirmation, ¶ 5). The only uncontroverted fact is that Mr. Veilleux intentionally omitted the first part of the sentence, in which this court stated that the defendants' motions for summary judgment were being denied because defendants had not demonstrated the absence of triable issues of fact, "includ[ing] a question as to whether the property defendants are responsible for the wiring of the building despite the apparent responsibility of the proprietary leaseholder to maintain the electrical outlets in their respective unit" (7/30/08 decision, p 2, emphasis added).

In fact, which party bears responsibility for the electric wiring is still an open question — or at least defendants have not shown that it is plaintiff. The Co-op and its counsel keep reiterating that plaintiff is responsible under the lease, but they do not cite any specific provision of that document (see, e.g., Vandenberg affidavit, ¶ 7, Co-op's exhibit D: "under the proprietary lease (Exhibit H), the shareholder is responsible to[sic] install, maintain, and repair any electrical wiring and outlets within the unit"). The court has perused the proprietary lease (Edelsteins' exhibit L) and has not found any such provision. The closest mention of responsibility for electric wiring is in the house rules: "The Lessor [i.e., the Co-op] is responsible for the repair and maintenance of all building components within the walls up to and including the prime coat of paint" (¶ 18, at Edelsteins' exhibit L). In this context, the court notes that the building is a cooperative rather than a condominium.

"A defendant's motion for summary judgment opposed by the plaintiff must be decided on the version of the facts most favorable to the plaintiff" (Mullin v 100 Church LLC, 12 AD3d 263, 264 [1st Dept 2004]). Furthermore, "foreseeability and causation ... are issues generally and more suitably entrusted to fact finder adjudication" (Palka v Servicemaster Management Services Corporation, 83 NY2d 579, 585 [1994]), and "the very question of negligence is itself a question for jury determination" (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]).

The court cannot say as a matter of law that the electrification of plaintiff's countertop is not attributable to defendants' negligence. "Thus, it [i]s not plaintiff's burden in opposing the motion for summary judgment to demonstrate, as defendant urges, that [the Co-op] had actual or constructive notice of the unsafe condition. Rather, it [i]s the responsibility of defendant to establish the absence of notice as a matter of law" since plaintiff submitted sufficient proof to allow a jury to reasonably infer that defendant was negligent (Colt v Great Atlantic & Pacific Tea Company Inc., 209 AD2d 294, 295 [1st Dept 1994]).

In view of the foregoing, the court finds that both motions should be denied. There are certainly questions of fact about the negligence of both the Edelsteins and the Co-op which preclude summary judgment for either defendant (see Silverman v Perlbinder, 307 AD2d 230 [1st Dept 2003]).

Accordingly, the Edelsteins' motion for summary judgment and the Co-op's cross-motion for summary judgment are both denied in their entirety. Upon service of a copy of this order with notice of entry, the Clerk of the Trial Support Office (Room 158) shall restore this action to its former place on the trial calendar. [*8]

Plaintiff's counsel is hereby ordered to forthwith cause the court records to be changed to reflect that the name of "969 Park Avenue Cooperative" has been changed to "969 Park Avenue Corporation."

This decision constitutes the order of the court.

DATED:November 30, 2009

_________________________

Hon. Walter B. Tolub, J.S.C. Footnotes

Footnote 1: By order dated August 7, 2008, this court granted a branch of plaintiff's motion (seq. no. 005) which sought to amend the complaint so as to change the name of "969 Park Avenue Cooperative" to "969 Park Avenue Corporation." More than a year later, not only has that change not been effected, but all parties — including plaintiff — continue to refer to the corporation as "969 Park Avenue Cooperative." The court can only conclude that either plaintiff's prior request was frivolous, or that counsel neglected to read the court's decision.

Footnote 2: Shafer v Edelstein, index no. 101027/07, and Great Northern Insurance Company v Edelstein, index no. 100351/07, consolidated for trial and currently pending before Justice Tingling of this court.