Trader v New York City Hous. Auth.
Annotate this CaseDecided on November 13, 2012
Supreme Court, Kings County
Joshua Trader, an infant under the age of 14, by his Mother and natural guardian, LAKISHA TRADER and LAKISHA TRADER, Individually, Plaintiffs,
against
New York City Housing Authority, Defendant.
27620/10
Attorney for Plaintiffs
Ralph J. Drabkin, Esq.
Drabkin & Margulies
120 Broadway, Suite 1150
New York, New York 10271
(212) 964-3400
Attorneys for Defendant
Wendy L. Prince, Esq.
Herzfeld & Rubin, P.C.
125 Broad Street
New York, New York 10004
(212) 471-8500
Francois A. Rivera, J.
By notice of motion filed on July 3, 2012 under motion sequence one, defendant New York City Housing Authority (NYCHA) moves pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that it had no legal duty to insulate the heating pipes in plaintiffs' apartment and therefore cannot be held liable for the infant-plaintiff's burn injuries. Plaintiffs oppose the motion.
BACKGROUND
[*2]
On November 9, 2010 the Joshua Trader (hereinafter Joshua or infant-plaintiff), by his mother LaKisha Trader, and the mother individually, commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated December 9, 2010 defendant NYCHA joined issue. On May 11, 2012, plaintiffs filed a note of issue.
Plaintiffs reside at 300 Dumont Avenue Apartment 3G, Brooklyn, New York (hereinafter "the subject apartment"). The subject apartment is part of the Samuel J. Tilden Houses, a residential complex owned, operated and maintained by NYCHA. Plaintiffs' complaint, verified bill of particulars, and notice of claim allege that on December 7, 2009 at approximately 10:30 A.M., the infant-plaintiff was severely burned when his leg made contact with an excessively hot and unprotected heating pipe located in the kitchen of his apartment. Plaintiffs' action is to recover damages for personal and derivative injuries caused by the negligence of NYCHA, in allowing the pipes to be unreasonably hot, uncovered and unprotected.
MOTION PAPERS
NYCHA's motion papers consist of an affirmation of counsel and twelve annexed exhibits, labeled A through L. Exhibit A is plaintiffs' note of issue dated April 12, 2012. Exhibit B is plaintiffs' notice of claim filed with NYCHA on December 21, 2009. Exhibit C is the 50-H hearing transcript of Lakisha Trader dated April 15, 2010. Exhibit D is plaintiffs' summons and complaint. Exhibit E is defendant's verified answer dated December 9, 2010. Exhibit F is plaintiffs' verified bill of particulars dated March 25, 2011. Exhibit G is plaintiffs' amended verified bill of particulars dated May 24, 2012. Exhibit H is the affidavit of engineer Leonard Weiss, pertaining to his inspection of the heating system serving the subject premises. Exhibit I is a certified copy of the certificate of occupancy of the subject premises. Exhibit J is the affidavit of Henry Zalak, administrator of logistics for NYCHA's Capital Projects Administration, pertaining to his review of NYCHA's records of capital improvements for the Samuel J. Tilden Houses. Exhibit K is the affidavit of NYCHA's heating plant technician Chrisie Salter, annexed boiler room logbook, and daily report entries for the first week of December 2009. Exhibit L is described as heating plant records.
Plaintiffs' opposition papers consist of an affirmation of their counsel and an affidavit of Stanley H. Fein, professional engineer, licensed in New York State.
NYCHA replied with an affirmation of its counsel.
LAW AND APPLICATION
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 facia showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible [*3]form demonstrating the absence of material facts (Guiffirda 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 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, supra, 68 NY2d at 324).
"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1 Dept 2008]). "The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegation of liability made by the plaintiff in the pleadings" (Miller v Village of E. Hampton, 98 AD3d 1007, 1008-1009 [2nd Dept 2012]).Plaintiffs' complaintalleges three theories of liability against NYCHA. First, NYCHA negligently permitted the hot water pipes in the subject apartment to be dangerously hot. Second, NYCHA failed to insulate the pipes in violation of sections §27-809, §27-115, and §27-116 of the Administrative Code of the City of New York of 1968. And third, NYCHA did not keep the pipes in good repair in violation of section §78 of the Multiple Dwelling Law.
As a general rule, "a landlord is not liable to a tenant for dangerous conditions on the leased premises, unless a duty to repair the premises is imposed by statute, by regulation or by contract" (Rivera v Nelson Realty, LLC, 7 NY3d 530, 534 [2006]). On a motion for summary judgment to dismiss a claim based on a provision of the Administrative Code, it is the movant's burden to establish the inapplicability of Administrative Code provisions (Pappalardo v New York Health & Racquet Club, 279 AD2d 134 [1st Dept 2000]).
Section §27-809 pertains to insulation and clearances and states, in pertinent part, as follows:
All accessible piping in habitable and occupiable rooms carrying steam, water, or other fluids at temperatures exceeding one hundred sixty-five degrees Fahrenheit shall be insulated to prevent the temperature at the outer surface of the insulation from exceeding sixty degrees Fahrenheit above the ambient temperature.
NYCHA does not dispute that the heating pipes in the kitchen of the subject apartment can reach temperatures of 180 degrees Fahrenheit. In fact, NYCHA submitted the affidavit of Leonard Weiss, an engineering expert, who verified this point. NYCHA, nevertheless, has moved for summary judgment arguing, among other things, that it had [*4]no duty to insulate the heating pipes in the subject apartment because 300 Dumont Avenue was constructed seven years prior to the enactment of the subject code, and the exceptions contained in sections §27-115 through §27-118 are not applicable.
In support of this contention, NYCHA annexed a copy of the certificate of occupancy for 300 Dumont and the affidavit of Henry Zalak. The certificate of occupancy establishes that the building was constructed in 1961. However, sections §27-115 and §27-116 provide that buildings constructed before the enactment of the subject code must be made to comply with the requirements of the code under certain circumstances. In particular, if in any 12-month period the cost of a building's alteration exceed 60% of its overall value, the entire building must be made code-compliant (Administrative Code § 27—115). Furthermore, if in any 12-month period the cost of a building's alterations fall between 30% and 60% of its overall value, only those portions of the building that have been altered must be made code-compliant (Administrative Code § 27—116).
Henry Zalak stated in his affidavit that "there were no alterations made to the building at 300 Dumont Avenue, which during a twelve month period exceeded 60% of the value of the building, which was approximately $40,451,100 in 2009." Mr. Zalak also stated that "during a twelve month period there were no alterations to the heating system which exceeded 30% of the building's value, which, in 2009 was $40,451,000." Although Mr. Zalak stated that he obtained the approximate value of the building and the building alteration costs in 2009 from capital improvement records, he did not submit these records nor support the value of the building by an appraisal or other documentary evidence. His vague and ambiguous statements suggest that the building was altered in 2009 but does not state what part of the building was altered, what was the cost of the alterations, and whether any alterations were made prior to 2009.
Although NYCHA established that 300 Dumont Avenue was constructed seven years before the relevant Administrative Code was enacted, a question of fact remains, namely, whether any qualifying alterations were performed prior to the infant-plaintiff's injury which would mandate NYCHA to make the building compliant with the code. Therefore, NYCHA failed to demonstrate the inapplicability of the subject Administrative Code provisions to 300 Dumont Avenue (Pappalardo v New York Health & Racquet Club, 279 AD2d 134 [1st Dept 2000]). Hence, NYCHA did not establish that it did not have a duty to insulate the heating pipes in the subject apartment and therefore failed to demonstrate the absence of material facts (see Guiffirda v Citibank, 100 NY2d 72 [2003]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Miller v Village of E. Hampton, — NYS2d —, 2012 WL 4094847, 2012 NY Slip Op 06195 [2nd Dept 2012] citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Accordingly, NYCHA's motion for summary judgment in its favor on the issue of liability and dismissal of the complaint is denied. [*5]
This foregoing constitutes the decision and order of the court.
Enter:
J.S.C.
Enter Forthwith:____________________________
J.S.C.
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