Hosten v Oladapo

[*1] Hosten v Oladapo 2010 NY Slip Op 52240(U) [30 Misc 3d 1202(A)] Decided on December 21, 2010 Supreme Court, Kings County Kramer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2010
Supreme Court, Kings County

Irving Hosten, as father and natural guardian of Quashawn Burgess, an infant, Plaintiffs,

against

Dele Oladapo, Defendant.



19785/06



Plaintiff was represented by the Law Offices of Mark R. Bower, PC, 11 Park Place, NY, NY 10007. Defendant was represented by the Law Offices of Robert P. Tusa, 1 Metrotech Center, Brooklyn, NY 11201.

Herbert Kramer, J.

When a pot full of boiling water falls off of a stove causing injuries to a child and the exact cause of the plummet is unknown can summary judgment be granted in favor of the landlord who allegedly failed to provide adequate heat for the premises where the accident occurred? This Court holds that summary judgment may be granted to the landlord as the cause of the pot falling is in the exclusive control of the plaintiff, the failure to provide adequate heat is not the cause of injuries suffered by plaintiff, and the plaintiff has failed to raise a genuine issue of material fact as to the defendant's liability for the accident.

Defendant, Dele Oladapo (Oladapo), the plaintiff's landlord at the time of the accident moves for summary judgment. Oladapo asserts that no genuine issue of material fact is in dispute as to liability. Plaintiff cross-moves seeking discovery and preclusion. [*2]

On a summary judgment motion the court must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and determine whether there are any triable issues of fact outstanding. Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]. The court must determine if the moving party's papers justify holding as a matter of law that the "cause of action or defense has no merit." Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [1990]. It is well established that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a material issue of fact or where the issue is arguable. Stillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957].

This action arises from an accident in which Quashawn Burgess (Quashawn), five years old at the time, was burned by boiling water which fell off of the stove. Quashawn's mother, Tekesha Burgess, testified that on the morning of the accident she had boiled four pots of water on the stove in order to provide heat in the apartment. She had placed Quashawn in the bathtub and while he was rinsing off she left the bathroom to retrieve his clothing. The bathroom opened up into the kitchen. While she was out of the bathroom, she heard a scream and immediately upon running to the kitchen saw Quashawn standing by the stove. It was apparent that a large pot had fallen off of the stove onto Quashawn. However, she did not witness the accident. Quashawn suffered severe burns.

Ms. Burgess testified that she had complained of inadequate heat prior to the incident to the building manager. She also stated that she had boiled water on the stove previously to provide heat to the apartment. Quashawn was tall enough to reach the pots on the stove, as was her other son who was present at the time of the accident. Her sons informed her that the pot simply fell off the stove while they were standing in front of it for warmth.

It is settled law that the failure to supply adequate heat or hot water is not the proximate cause of injuries suffered in cases such as the one at Bar. Martinez v. Lazaroff, 48 NY2d 819 [1979], Laureano v. Louzoun, 165 AD2d 866 [2nd Dep't 1990]. While the defendant's failure to provide adequate heat gave rise to the plaintiff's attempt to provide a substitute supply of heat, the act of boiling water itself was not the direct act which caused the injuries. Rather, some unknown act was the cause of the injuries.

The defendant has satisfied his burden on a summary judgment motion through the submissions of Ms. Burgess' deposition transcript which provides the details of the accident. Where the "moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do . . . " Zukerman v. City of New York, 49 NY2d 557[1980]. The plaintiff has failed to meet this burden.

Plaintiff opposes the motion on the grounds that additional discovery must be had in order to determine the cause of the pot's fall. In support of his position plaintiff asserts that CPLR 3212(f) precludes granting the motion as there is evidence in exclusive control of the defendant. The information which plaintiff alleges is in defendant's control and essential to the motion are records of repairs and modifications to the heating system and access for an inspection.

The information sought by plaintiff is not essential to the instant motion as it cannot shed light on the reason the pot fell off of the stove. In actuality that information, which is in the exclusive control of the plaintiff. It is not disputed that the defendant lacked control of the stove, was not present at the time fo the accident and had never been informed of, nor had there been any [*3]complaints of pots falling off of the stove prior to the accident. Therefore, plaintiff's argument that additional discovery is needed regarding the heating system does not raise a genuine issue of material fact.

Plaintiff further attempts to distinguish the cases relied upon by defendant by pointing out that in those cases the parties were aware of the "intervening cause" which caused the accident.[FN1] However, in this case since the whatever caused the pot to fall is unknown the cases are inapplicable. Plaintiff correctly points out that the cause is unknown which differs from the fact patterns of the precedence. This difference however fails to raise a genuine issue of material fact and does not preclude the application of the rule of law established by those cases. Ultimately, the cause of the pot falling is in the exclusive knowledge of the plaintiff and there has been no admissible evidence submitted which could possibly hold the defendant liable for the fall.

Accordingly, the defendant's motion is granted. Plaintiff's motion is moot and therefore denied.

This constitutes the decision and order of the court.

J.S.C. Footnotes

Footnote 1:Infant's father collided with child while carrying pot of hot water to bathroom in order to bathe. Martinez, 48 NY2d 819 [1979]. Mother carrying pot of hot water to bathroom collided with her son. Hang v. Wong, 853 NYS2d 654 [2nd Dep't 2008]. Plaintiff accidently banged two pots of boiling water together causing the water to spill on her legs and feet. Laraine v. Lasagne, 560 NYS2d 337 [1990]. In all cases the defendants were landlords who had failed to provide heat or hot water, or both, and the plaintiffs had attempted to heat up their apartments and provide hot water by boiling water on their stoves.