Castillo v Cretans Assn., "OMONIA", Inc.
Annotate this CaseDecided on May 18, 2004
Supreme Court, New York County
ROBERT CASTILLO, Plaintiff,
against
CRETANS ASSOCIATION, "OMONIA," INC., Defendant.
110483/01
Marilyn Shafer, J.
This motion stems from a personal injury action in which plaintiff alleges that he slipped and fell out of his apartment window while attempting to open it. In October 1999, plaintiff resided in a two bedroom, walk-up apartment on the second floor (the "Premises") of 387 Eighth Avenue in New York County (the "Building"). Defendant was the landlord of the Building. In the early hours of October 5, 1999, after coming home from a nearby bar where plaintiff consumed five bottles of beer, plaintiff attempted to open his rear bedroom window with the back of his shoulders by sticking his head and shoulders under the window. Plaintiff alleges that [*2]the window suddenly "popped" open and caused him to fall two stories onto a concrete pavement. As a result, plaintiff alleges that he sustained serious back and leg injuries which required several weeks of hospitalization and surgery.
Defendant brings this motion for summary judgment dismissing the complaint asserting that no triable issues of fact exist. Defendant contends that it is entitled to summary judgment because plaintiff has failed to prove his prima facie case against it since he cannot establish that it had actual or constructive notice of the defective condition of the window. Defendant claims that plaintiff testified that he never made any complaints to defendant about his rear bedroom window and that he had previously opened the subject window on numerous occasions without incident.
In opposition, plaintiff maintains that defendant has failed to establish a prima facie case entitling it to summary judgment as a matter of law and therefore, the instant motion should be dismissed. Plaintiff further maintains that defendant can be charged with constructive notice of the defective window by reason of paragraph 11 of the lease agreement by which defendant retained the right to re-enter the premises to perform inspections and repairs together with the fact that the defect in the window constituted a specific structural violation of the New York State Fire Prevention and Building Code. Specifically, plaintiff asserts that defendant was in violation of section 1242.1 of the State Uniform Fire Prevention and Building Code, which provides that "[h]abitable space shall have natural ventilation provided by means of openable parts of windows or other openings in exterior walls . . ." Plaintiff further alleges that his rear bedroom window was not in compliance with this section of the State Uniform Fire Prevention and Building Code because it would not open freely and would stick or become inoperable and therefore, did not provide the needed ventilation for the rear bedroom.
It is well settled that the proponent of a summary judgment motion must make a prima facie case showing entitlement to judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, 64 NY2d 851[1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557 [1980]).
This Court finds that defendant's submissions in support of its motion for summary judgment satisfy the prima facie showing required by law, thus shifting to the plaintiff the obligation to show by evidentiary proof the existence of a triable issue of material fact. A review of the plaintiff's submissions, including, inter alia, plaintiff's deposition transcript, the affidavit of his expert, and copies of photographs of the window, do not support the finding that plaintiff has produced sufficient evidence to establish a question of fact as to defeat summary judgment.
In order for a plaintiff to establish a prima facie case of negligence, he must demonstrate that the defendant either created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition (Gordon v American Museum of Natural History, 67 NY2d 836 [1986] ). Here, there is no evidence that defendant inspected the Premises or that it had actual knowledge of the claimed defective window. However, constructive notice can be attributed to a landlord when it reserves a right of entry for the purposes of inspection and [*3]maintenance or repair and a specific statutory violation exists (Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 [1987]). Moreover, "only a significant structural or design defect that is contrary to a specific statutory safety provision will support the imposition of liability against the landlord" (Velazquez v Tyler Graphics, Ltd., 214 AD2d 489 [1st Dept 1995]). While the lease agreement did provide for defendant's right of entry for the purposes of inspection and maintenance or repair, that, without more, is not sufficient to impose liability on defendant. In the instant matter, plaintiff has failed to establish constructive notice because section 1242.1 of the State Uniform Fire Prevention and Building Code is not a statute, but a regulation and it is settled law that a violation of an Executive Law regulation is legally insufficient to establish constructive notice (Id.). Additionally, plaintiff's own expert opined that the alleged defective conditions of the window were created by the lack of needed maintenance, not because of a significant structural or design defect. Accordingly, plaintiff has failed to produce sufficient proof in admissible form to raise a triable issue of fact thereby precluding summary judgment.
Accordingly, it is
ORDERED that defendant's motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
This reflects the decision and order of this Court.
Dated: May 18, 2004
J.S.C.
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