Rotblut v 399 E. 72nd Apt. Owners Inc.

Annotate this Case

Download PDF

Rotblut v 399 E. 72nd Apt. Owners Inc. 2012 NY Slip Op 31924(U) July 12, 2012 Supreme Court, New York County Docket Number: 603265/07 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. . . NNED ON 712012012 [* 1] __ SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY DEBRA A. JAMES PRESENT: PART 59 Justice WILLIAM D. ROTBLUT a n d LOIS B. ROTBLUT, Plaintiffs, -v- Index No.: 60326$/07 Motion Date: Q1/06/12 Motion Seq. No.: 3 9 9 EAST 72 APARTMENT OWNERS I N C . and ANTHONY S CONTRACTING, Defendants. 03 Motion Cal. No.: The following papers, numbered 1 to 2 were read on this motion for summary judgment. Notice of MotionlOrder to Show Cause -Affidavits -Exhibits Fl l m Answering Affidavits - Exhibits Replying Affidavits - Exhibits Yes Cross-Motion: No NEW YORK COUNTY CLERKS OFFICE Upon the foregoing papers, The court shall deny plaintiffs motion for summary judgment against the cooperative. The gravamen of plaintiffs complaint upon which summary judgment is sought is that the defendant cooperative should be held liable for the peeling plaster on the walls and ceiling of plaintiffs apartment. Plaintiffs first cause of action sounds in breach of contract. The court must deny summary judgment on this cause of action because p l a i n t i f f s fail to establish a prima facie case Check One: [3 FINAL DISPOSITION Check if appropriate: NON-FINAL DISPOSITION REFERENCE 0 DO NOT POST 0 SETTLElSUBMlT ORDEWJUDG. [* 2] that the cooperative breached any duty under the proprietary lease. Paragraph 2 of the Proprietary Lease, "Lessor's Repairs, " provides in pertinent part that the Lessor "shall at its expense keep in good repair all of the apartments . . . except those portions the maintenance and repair of which a r e expressly stated to be the responsibility of the,Lessee pursuant to Paragraph 18 hereof." Paragraph 18 provides "The Lessee shall take possession of the Apartment and its appurtenances and f i x t u r e s 'as is' as of the commencement of term hereof. . . t h e Lessee shall keep the interior of the Apartment (including i n t e r i o r w a l l s , floors arid c e il i p s 9 , but excluding windows, window panes, window frames, sashes, sills, entrance and terrace doors, frames and saddles) in good repair. . . /I Based upon the terms of the proprietary lease and the damage alleged, plaintiffs have f a i l e d to establish that the cooperative has any contractual responsibility to repair the alleged defects. P l a i n t i f f s took the apartment as is and are responsible for the maintenance of the interior surfaces of the apartment. Plaintiffs have the burden on this motion of demonstrating that the damage was caused by conditions which are not within the scope of the lessee's responsibility and h e has fpiled to do so. The fact that the cooperative u n d e r t o o k to repair the ceiling does not, by itself, change the terms of the proprietary lease as concerns the parties' respective maintenance obligations. -2- [* 3] Instructive i n this regard is the case of H a u p t w n v 222 East 80th Strept Co rp., 100 Misc2d 153, 154 (Civ Ct, NY County, Freedman, J., 1979) wherein it was stated t h a t "[pllaintiff brings this action against defendant apartment co-operative to recover the amount he s p e n t to repair the ceilings of his co-operative apartment. . . The sole issue before the c o u r t is whether plaintiff or defendant is responsible f o r the repair of t h e ceiling in p l a i n t i f f ' s apartment." In Flauptman, the court after conducting a bench trial found t h a t based upon that proprietary lease the "lessor is basically responsible for the foundation, common areas and all of the structural aspects of the building. Beams, supports, roofs, plumbing apparatus and p i p e s are within the province of the landlord co-operative. The i n t e r i o r of the apartment is the responsibility of the tenant." .&Lat 156. I n H a u p t m m the plaintiff's presented unrefuted expert testimony that "the bubbling and falling of the plaster was caused by either the improper application of, or the use of a defective bonding agent." & at 154. In this case, plaintiffs r e l y upon three reports of defendant's consultants. The consultant's August 24, 2005, r e p o r t states that there appeared to be a bonding issue with the plaster and paint in a portion of the ceiling of the apartment bedroom. plaster in this case was a thin layer. -3- The report noted that the Plaintiffs state that the [* 4] cooperative retained defendant Anthony's Contracting to make repairs based upon this report, I n a subsequent report dated October 13, 2005, the same consultant stated that no defects related to bonding of t h e plaster were observed in the apartment. In a third report d a t e d November 16, 2005, the consultant concluded that "We did not observe any structural damage or concerns in apartment 15F. Although we recommend that the small section of t h e kitchen ceiling where the plaster bond is in question be addressed in the near future, we do not believe there is any emergency condition in this apartment. We therefore do not find the necessity to either vacate or shore up the ceilings in the apartment at this time." In contrast to Hauptman, there is no expert testimony on this m o t i o n that the cooperative either c r e a t e d or failed to repair a dangerous condition in the apartment assuming that the cooperative had such a duty. To the extent the consultant set forth that there was a problem with the plaster upon initial inspection of the a p a r t m e n t , the consultant's subsequent reports state that t h e condition no longer existed. Without other evidence, t h e current record is insufficient to meet plaintiffs' burden on this motion. As to the part of plaintiffs' claim for breach of contract based upon defendant cooperative's alleged violation of the warranty of habitability (Kent v 534 E a s t l l t hStreet, 80 AD3d -4- [* 5] 106 (lst Dept 2010), summary judgment must be denied because material issues of fact exist, including . . . whether t h e condition was detrimental to life, health or safety within t h e meaning of the statute. Flkrnan v Southqate Owners Corp., 233 AD2d 104, 105 (1 Dept 1996)- Plaintiffs only present mere speculation that the cooperative somehow controlled the means and methods of the work performed or+that the cooperative was somehow otherwise negligent. See 905 5th Asac, c . , A D 3 d 401, 402 ( l m t Dept 2008). Inc,, v 9 0 7 Corp., 4 7 This is insufficient to sustain a summary judgment motion upon a claim of such a b r e a c h . Similarly, plaintiffs present no evidence in support of their causes of action against the cooperative under the ADA or for negligence and therefore sumrr.ary judgment shall be denied. Accordingly, it is ORDERED that plaintiffs mo:ion for summary judgment is DENIED; and it is further ORDERED that the parties a r a directed to attend a status conference on July 31, 2012, at 2:30 p.m. in Part 5 9 , Room 103, 71 Thomas Street, New York, New York 10013. -5- FILED

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.