Roberts v Chaim Yanko, LLC

[*1] Roberts v Chaim Yanko, LLC 2013 NY Slip Op 50520(U) Decided on February 28, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2013
Supreme Court, Kings County

Jacob Roberts, an Infant by His Mother and Natural Guardian, Elizabeth Gillespie, and Elizabeth Gillespie, Individually, Plaintiffs,

against

Chaim Yanko, LLC, Kings Plaza Plumbing, Heating & Construction, Inc., and S.J. Fuel Co., Inc., Defendants.



12877/08



Larry Kramer, Esq., Kramer & Pollack, LLP, Mineola, NY, for Plaintiffs

Ondine Slone, Esq., Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, NY,

for Defendant Chaim Yanko, LLC

Mary E. Mohnack, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, NY,

for Defendant Kings Plaza Plumbing, Heating & Construction, Inc.

Doris Rios Duffy, Esq., Law Offices of Edward Garfinkel, Brooklyn, NY, for Defendant S.J. Fuel Co., Inc.

David I. Schmidt, J.

In this action to recover damages for personal injuries, etc., the following motions and cross motion have been consolidated for disposition and, upon consolidation, oral argument on Nov. 27, 2012, the Court's bench decision and order of the same date, and the parties' post-argument submissions:

(1) In sequence number 8, the motion of defendant S.J. Fuel Co., Inc. for summary judgment dismissing plaintiffs' amended complaint and all cross claims insofar as asserted against it is granted.

(2) In sequence number 9, the motion of defendant Chaim Yanko, LLC for summary judgment dismissing plaintiffs' amended complaint and all cross claims insofar as asserted against it, and for summary judgment against the plaintiff mother on its affirmative defenses and counterclaim, is denied.

(3) In sequence number 10, the motion of defendant Kings Plaza Plumbing, Heating & Construction, Inc. for summary judgment dismissing plaintiffs' amended complaint and all cross claims insofar as asserted against it is denied.

(4) In sequence number 11, the branch of plaintiffs' cross motion for an order granting them summary judgment dismissing defendants' counterclaims against the plaintiff mother is granted, and such counterclaims insofar as asserted against the plaintiff mother are hereby dismissed. The remaining branch of plaintiffs' cross motion for an order, in limine, excluding at trial all testimony and records regarding the plaintiff mother's mental health is denied as premature with leave to renew before a trial judge.

This action is severed and continued against the remaining defendants Chaim Yanko, LLC and Kings Plaza Plumbing, Heating & Construction, Inc. The caption is amended to delete S.J. Fuel Co., Inc.

Background

On July 2, 2007, the eight-month-old Jacob Roberts was burned with bath water after his mother Elizabeth Gillespie finished rinsing him and was attempting to turn off hot water, as he remained in the tub. Because the tub's hot-water faucet was out of order, she attempted to turn off hot water by using a shut-off valve which was located on a standalone pipe at the opposite wall of the narrow bathroom. To use the shut-off valve, she turned her body toward it and manipulated its knob. As she was manipulating the knob, she let go of her son who, either immediately or seconds later, fell under a mix of cold and hot water that was flowing out of the tub's spout. She was alerted of her son's distress when he screamed in pain. She took him out of the tub and rushed him to a nearby hospital. According to a triage nursing note, Jacob's mother attributed the cause of her son's hot water burns to her own error, stating, "I was giving him a bath and by accident I was turning off the hot water and I turn[ed] it the wrong way . . . and [he] got burn[ed]."

Jacob's mother was the sole witness to her son's accident. Twenty-two years old at the time, she has suffered from a bipolar disorder since the age of sixteen. Although prescribed psychiatric medications, she took them only in the depressed phase of her bipolar disorder. She was not on any [*2]psychiatric medication at the time of the accident. Before the date of the accident, she had bathed Jacob twice in the same tub without an incident. At those times, she used bottled water either in addition to, or instead of, bath water.

For several days before the accident, Jacob and his mother had been guests of the apartment tenants — two adults and four children, the youngest being eleven months of age. No other adults or children were in the bathroom when Jacob's mother was bathing him or when the accident occurred. The adults had experienced no difficulty in bathing their children in the tub. Taking a baby out of the tub before turning off hot water was necessary, explained one adult tenant (Gina Catania at pages 68-69 of her pretrial deposition), to avoid burning the baby with hot water.

After the accident, the investigating detective Joseph Sallustio and plaintiffs' expert Leonard Weiss, P.E., separately measured the hot water temperature in the apartment bathroom. Detective Sallustio testified that in the morning on the day following the day of the accident (July 3, 2007), he measured the water temperature in the bathroom at 160 degrees, said measurement was taken either in the tub or in the sink.[FN1] Plaintiffs' expert P.E. Weiss attests that 23 days after the accident (July 25, 2007), he measured the water temperature in the tub at 145 degrees over a period of 30 minutes. According to P.E. Weiss, exposure to water temperatures exceeding 140 degrees can instantly cause severe burns. P.E. Weiss refers to a time-temperature burn chart, which was compiled by the Consumer Product Safety Commission, stating that at 149 degrees, second and third degree burns are sustained in two seconds.[FN2]

The building in which the accident occurred, 188 Marcus Garvey Boulevard in Brooklyn, was a four-story, 16-apartment tenement constructed in 1909. Domestic water in the building was heated by water heaters located in the cellar. Before the date of the accident, one of the adult tenants in the subject apartment (4-B) had repeatedly complained to a building employee about the unsafe hot water condition in the apartment: either there was no hot water in the apartment or, if there was, "[i]t came out scalding automatic, it did not warm up, and then g[o]t hot, it was just burning hot" (Catania Dec. 9, 2011 Tr at 20-22; see also Tr at 41 ["It (the water) "was too hot."]). According to the building employee, other tenants had complained to him about the lack of hot water in the building as well.

The building owner, although aware of the tenant complaints, adopted a wait-and-see approach on the grounds that the building was losing money. As an investor in distressed properties, he posited that if fewer tenants could take a bath at the same time, there could be enough hot water for all the tenants to use, and, therefore, they would eventually stop complaining. If wisdom consists of the anticipation of consequences, the building owner's strategy of doing nothing turned out to be costly. Receiving no assistance from the building owner, the tenants took their grievances to the New York City Department of Housing and Preservation Development (HPD). HPD inspected the building, declared an emergency, and dispatched one of its contractors, defendant S.J. Fuel Co., Inc. [*3](the contractor), to install two new water heaters in the building. The contractor bought the water heaters, delivered them to the building cellar, and removed the then-existing water heaters. The contractor also hired defendant Kings Plaza Plumbing, Heating & Construction, Inc. (the subcontractor) to connect the water heaters to the gas and water lines in the cellar. The subcontractor's principal Frank Bernie, Sr., a licensed master plumber, connected the water heaters to the gas and water lines. Although one or two service mechanics from the contractor may have been present during all or part of the hook-up to ensure that the work was performed so that the contractor could bill the HPD, they did not supervise Bernie Sr., who was solely responsible for the means and methods of his work. At his pretrial deposition, Bernie Sr. described the connection process and even brought a representative sample of a water heater thermostat to his deposition to demonstrate to the questioning attorneys how he had set the temperature for the water heaters in the building. Bernie Sr. testified that he set the temperature dial on the water heaters' thermostat at "Hot," meaning at 120 degrees.[FN3] He explained that the temperature of the water flowing out of the faucets in the apartments would be lower than 120 degrees because heat is lost in water pipes as the water travels from the cellar water heaters to the upstairs faucets. Aside offering this post hoc rationalization, however, Bernie Sr. did nothing on site to check whether the water temperature was, in fact, at 120 degrees or lower.[FN4] But the inquiry into why the water temperature was excessively hot might not end with Bernie Sr.'s job. The cellar was apparently accessible to anyone visiting the building because the locks on both the cellar door and the front entrance door were often broken by drug dealers and squatters who infested the building. Whether a tenant or a trespasser might have changed the temperature setting on the thermostat once Bernie Sr. left the job cannot be excluded, at least as a theoretical possibility.

It was only after the water heaters had been delivered and connected in the cellar that the building owner learned of their installation after the building employee had been alerted of the fact by the building superintendent. Neither the building owner, the building employee, nor the building superintendent were present when the water heaters were delivered and connected. Their specific lack of awareness is underscored by their general lack of expertise in managing residential real estate. The building owner, Katriel Chaim Yankowitz, was a real estate investor specializing in distressed residential properties occupied by low-income tenants. Mr. Yankowitz revealed at his pretrial deposition that he made money off this building by a one-time refinance of his purchase money mortgage, rather than by collecting rents and managing the building. The building employee, Joel Zinger, was a former check-cashing clerk with no prior real-estate management experience. Mr. Zinger admitted at his pretrial deposition that managing and maintaining this building was getting too much for him and that, at his request, Mr. Yankowitz eventually relieved him of this duty. The [*4]building superintendent, Debra Peralta, although capable of fixing small jobs, relied on her live-in boyfriend for larger jobs. Ms. Peralta was never deposed, and her present whereabouts is unknown.

The infant plaintiff and his mother commenced this action against the building owner, the contractor, and the subcontractor for negligence, the mother's loss of the infant's services, and the infant's future medical bills. The building owner and the contractor, in their respective answers, have cross-claimed against co-defendants and counterclaimed against the plaintiff mother for contribution and indemnification. The subcontractor also joined issue, but has asserted no cross claims or counterclaims. All defendants, however, have asserted affirmative defenses against the plaintiff mother.

The Instant Motions/Cross Motions

As stated, four post-note of issue motions/cross motions have been consolidated for disposition. Each defendant has moved for summary judgment dismissing plaintiffs' amended complaint and all cross claims insofar as asserted against such defendant. In addition, the building owner has moved for summary judgment against the plaintiff mother on its affirmative defenses and counterclaim. Plaintiffs has cross-moved for an order granting them summary judgment dismissing the building owner's and the contractor's counterclaims against the plaintiff mother and, additionally, cross-moved for an order, in limine, excluding at trial all testimony and records regarding her mental health. The parties have agreed, for the purposes of these motions/cross motions, that both the delivery and the connection of the water heaters occurred before the time of the accident.[FN5]

At the conclusion of oral argument on these motions/cross motions on Nov. 27, 2012, the Court ruled from the bench, in relevant part, that:

"[D]efendant S.J. Fuel's motion for summary judgment against all parties is granted.

To the extent that it's granted against the plaintiff[s] . . . and all other co-defendants, except for the building owner, it's granted. . . .

[D]efendant Kings Plaza Plumbing's motion for summary judgment is denied.

The plaintiff[s'] [cross] motion to dismiss the . . . counterclaim[s] against the mother . . . is reserved.

* * *

[T]he building owner's motion for summary judgment is, likewise, denied. . . .

* * *[*5]

The building owner has 2 weeks to put in a brief as to whether or not the exception to Espinal [v Melville Snow Contrs., Inc., 98 NY2d 136 (2002)] that the plaintiff[s] relied on applies . . . and whether or not [the building owner's] reliance is on the City doing a proper job is considered reliance on S.J. Fuel to do the proper job, so that we keep [the building owner] in despite Espinal.

This constitutes the decision and order of the Court."

This amended supplemental order resolves the remaining issues on which the Court reserved decision in its bench decision and order.

The Building Owner's Cross Claim Against the Contractor

The branch of the motion of the contractor (S.J. Fuel) for summary judgment dismissing the building owner's cross claim against it is granted. With respect to the portion of the building owner's cross claim sounding in common-law indemnification, the contractor has established, prima facie, that it is entitled to judgment as a matter of law dismissing such cross claim by demonstrating that the accident was not due solely to its negligent performance or nonperformance of an act solely within its province. In opposition, the building owner has failed to raise a triable issue of fact (see Schultz v Bridgeport & Port Jefferson Steamboat Co., 68 AD3d 970, 972 [2d Dept 2009]).

Furthermore, in opposition to the prima facie showing by the contractor that it is entitled to summary judgment dismissing the remaining portion of the building owner's cross claim sounding in contribution, the building owner has failed to demonstrate either that the contractor owed the building owner a duty of care independent of its contractual obligations, or that the contractor owed the infant plaintiff a duty of care (see Schultz, 68 AD3d at 972). On the latter issue of the duty of care by the contractor to the infant plaintiff, the contractor has made a prima facie showing that its contract with the HPD to provide emergency repairs was not comprehensive and exclusive so as to displace the building owner's statutory duty to provide tenants and their guests with safe hot water. Moreover, it cannot be disputed that the infant plaintiff could not rely on the contractor's performance of its contractual duties to the HPD. Finally, the contractor has established that it did not launch a force or instrument of harm which created or exacerbated a hazardous condition in the building. In opposition, the building owner has failed to raise a triable issue of fact (see Schultz, 68 AD3d at 971-972).

The building owner's remaining arguments for the imposition of liability on the contractor lack merit. The building owner's position that it detrimentally relied on the contractor's relationship with the HPD ignores the undisputed fact that the building owner was not aware of the water heaters' delivery and connection until after the fact. The building owner's claim that the contractor is vicariously liable for the subcontractor's alleged negligence in setting the water temperature fails to meet any of the narrow exceptions that impose vicarious liability on a principal for the acts of its independent contractor. The building owner has failed to demonstrate, prima facie, that the contractor was negligent in selecting, instructing or supervising the subcontractor. Next, the subcontractor was not hired to perform work which was "inherently dangerous" because it has been held that an improper setting of water temperature on a thermostat was "more or less usual negligence" and did not create the danger that was inherent in the nature of the contract work (see Saini v Tonju Assoc., 299 AD2d 244, 246 [1st Dept 2002] [internal quotation marks omitted]). Finally, the contractor did not have a specific, nondelegable duty arising out of some relation toward [*6]the public or the building owner (see Kleeman v Rheingold, 81 NY2d 270, 274 [1993] [citing Restatement (Second) of Torts § 409, Reporter's Note, Comment b, which defines the "nondelegable duty" to encompass those "arising out of some relation toward the public or the particular plaintiff"]). Accordingly, the building owner's cross claims against the contractor are dismissed.

Defendants' Counterclaims Against the Plaintiff Mother

The branch of plaintiffs' cross motion for summary judgment dismissing defendants' counterclaims against the plaintiff mother is granted.[FN6] General Obligations Law (GOL) § 3-111 provides that "[i]n an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's parent . . . shall not be imputed to the infant." GOL 3-111 codifies the general rule that a mere negligent supervision of a child is not actionable (see Navaro v Ieraci, 214 AD2d 713, 714 [2d Dept 1995]). "The negligent supervision' rule protects infants against tortfeasors who would avoid paying damages for their own negligence by pointing to the nearly ever-present negligent supervision of the infants' parents" (Cooper v County of Rensselaer, 182 Misc 2d 487, 490-491 [Sup Ct, Rensselaer County 1999]).

The negligent supervision' rule is subject to a narrow exception: contribution against the parent is available "where the parent's conduct toward his child would be a tort if done by one ordinary person to another" (Holodook v Spencer, 36 NY2d 35, 48 [1974] [internal quotation marks omitted]). Thus, if the injury results from the parent's breach of a duty owed to the world at large, contribution may be recovered from that parent (see e.g. Maldonado v Newport Gardens, Inc., 91 AD3d 731, 732 [2d Dept 2012] [child injured in apartment fire caused by the mother who left an almost entirely burnt candle unattended while she was gone, as the child remained locked in the apartment]; Hoppe v Hoppe, 281 AD2d 595, 595-596 [2d Dept 2001] [child injured by explosive nail gun cartridge obtained from parent]; Grivas v Grivas, 113 AD2d 264, 269 [2d Dept 1985] [child injured by a running electric powered lawn mower that parent left unattended with other children [*7]nearby]).

The facts of this case are similar to those in Zikely v Zikely (98 AD2d 815 [2d Dept 1983], affd on opn below 62 NY2d 907 [1984]). In Zikely, the mother had turned on the hot water faucet in a tub to prepare a bath and then left the room. The child, left unsupervised, wandered into the bathroom and either fell into or otherwise entered the tub, suffering severe burns. The Second Department held (at page 815) that, although the mother had created the unsafe hot water condition, the proximate cause of the injury was the negligent supervision of the child, and, accordingly, the mother could not be held liable for the child's injuries.[FN7]

In an attempt to avoid the Second Department's holding of Zikely, the building owner argues that the plaintiff mother breached a duty owed to the world at large, inasmuch as "[t]he injurious instrumentality was the running hot water which was turned on and controlled by [the plaintiff mother]," who "[t]heoretically . . . could have been bathing a child who was not her son" (Building Owner's Memorandum of Law at 15). A similar argument was rejected in Burgess v Cappola (251 AD2d 1001 [4th Dept 1998]) in relation to an open window through which a child fell, and in Wilson v Sears, Roebuck and Co. (126 AD2d 954, 954-955 [4th Dept 1987]) in relation to a deep fryer with boiling fat into which the child immersed his hands.[FN8] A running hot water faucet does not pose a [*8]danger to the world at large in the same sense as an explosive device (see Hoppe, 281 AD2d at 596), an electric powered lawn mower (see Grivas, 113 AD2d at 269), or a house that a parent's renovation has caused to be filled with lead dust (see Berger v City of New York, 177 Misc 2d 891, 893 [Sup Ct, Kings County 1998]). Significantly, not one of the four children then residing in the apartment was in the bathroom when the plaintiff mother was bathing Jacob or thereafter when the accident occurred.

The building owner next contends that the plaintiff mother's "unforeseeable and intervening conduct in leaving [the] 8-month old Jacob in the bathtub unattended while she attempted to shut off the water was the proximate and superseding cause of Jacob's injuries" (Building Owner's Memorandum of Law at 8). However, the issue of what constitutes a superseding cause is generally an issue of fact for the jury to resolve (see Simmons v Sacchetti, 15 NY3d 797, 798 [2010] [where an unattended child was scalded after she fell into a bathtub for which her brother had turned on hot water and while her mother was in another room, issues of fact existed as to whether the conduct of the infant plaintiff's mother and brother constituted a superseding cause of her injuries]; Mora v Cammeby's Realty Corp., 35 Misc 3d 1225[A], 2012 WL 1699851, *3-4, 2012 NY Slip Op 50893[U] [Sup Ct, Kings County 2012] [although defendant "need not have foreseen that the infant would have broken free from her father's grasp, run to the heat riser, and hugged' it, while the fresh paint on the pipe was still sticky," "it cannot be said, as a matter of law, that the infant's conduct constituted an extraordinary and intervening act which made the risk of injury unforeseeable"]).[FN9] [*9]

The building owner's reliance on Rivera v City of New York (11 NY2d 856 [1962]) is unavailing. Unlike the infant plaintiff herein, the injured child in Rivera was not using the bathtub for the purpose which it was intended — to bathe. Rather, while wearing non-slip resistant boots, he was precariously perched on the tub's edge in an effort to reach the light. The Court of Appeals held that this unusual act could not have been reasonably foreseen and could not, as a matter of law, be viewed as a proximate cause of the injuries plaintiff ultimately sustained when he slipped off the edge and landed in the bathtub filled with hot water.[FN10]

Lastly, the building owner's reliance on Williams v Jeffmar Mgt. Corp. (31 AD3d 344 [1st Dept 2006], lv denied 7 NY3d 718 [2006]), is also misplaced as it ignores the controlling precedent in the Second Department. In Williams, the First Department held (at page 346) that supplying hot water to an apartment did not constitute negligence, regardless of how hot the water might have been. In contrast to the First Department's decision in Williams, the Second Department's subsequent decisions have held that supplying excessively hot water to an apartment could indeed constitute negligence (see Moshe K. v Nu Kol Tuv, Inc., 98 AD3d 652 [2012]; Scholtz v Catholic Health Sys. of Long Is., Inc., 70 AD3d 808, 809 [2010]; Shkolnik v Longo, 63 AD3d 819, 820 [2009]; Rosencrans v Kiselak, 52 AD3d 492, 492-493 [2008]). Equally important, the First Department's decision in Williams is of limited precedential value after the Court of Appeals' decision in Simmons v Sacchetti (15 NY3d 797, 798 [2010]), which found, in a case of hot water scald, triable issues of fact as to whether defendants negligently failed to maintain the apartment building's boiler and domestic hot water system in a reasonably safe condition.

In sum, the building owner has failed to establish as a matter of law that the infant plaintiff's injuries were not a foreseeable consequence of (1) its alleged failure to supply safe hot water, and (2) the subcontractor's alleged negligence in setting the water temperature. Nor has the building owner established that its own alleged negligence or that of the subcontractor was not a proximate cause of the infant plaintiff's injuries (see Terry v Danisi Fuel Oil Co., Inc., 40 AD3d 1072, 1073 [*10][2d Dept 2007]; Bingham v Louco Realty, LLC, 36 AD3d 845, 846 [2d Dept 2007]).

Plaintiffs' In Limine Request to Exclude at Trial

Evidence of Plaintiff Mother's Bipolar Disorder and Her Treatment

The remaining branch of plaintiffs' cross motion for an order, in limine, to exclude at trial evidence of the plaintiff mother's bipolar disorder and treatment is denied as premature with leave to renew before a trial judge. Not only does an order ruling on a motion in limine — when made in advance of trial on motion papers — constitute an advisory opinion (see O'Donnell v Ferguson, 100 AD3d 1534, 1535 [4th Dept 2012]), but also neither party has submitted expert affidavits to assist the Court in determining whether the plaintiff mother's bipolar disorder and her non-compliance with medications were in any way related to the accident.[FN11] Aside from the fact that the plaintiff mother has not affirmatively placed her mental condition and treatment in issue in this action (see DeSilva v Rosenberg, 129 AD2d 609, 610 [2d Dept 1987]), such information falls within the ambit of protection afforded by various sections of the CPLR — section 4508 for certified social worker-client relationships, section 4507 for registered psychologist-client relationships, and section 4504 for physician/psychiatrist-patient relationships (see Yaron v Yaron, 83 Misc 2d 276, 277-278 [Sup Ct, NY County 1975]) — and will not be admissible at trial unless the plaintiff mother has failed to assert or has waived the privilege (see Dillenbeck v Hess, 73 NY2d 278, 287-289 [1989]). Whether the plaintiff mother has validly asserted the privilege and whether she has voluntarily waived it are matters for the trial judge to determine in the first instance (see Lombardi v Hall, 5 AD3d 739, 740 [2d Dept 2004]). In this regard, it appears that the plaintiff mother may have waived the privilege, as she testified (at pages 21-22, 30-31, 35-42 of her Aug. 31, 2010 pretrial deposition) that (1) she has suffered from a bipolar disorder since the age of 16, (2) she named the medications she had been taking for her bipolar disorder since that time, and (3) she denied taking a prescription medication for her bipolar disorder at the time of the accident and explained the reasons why (see Neferis v DeStefano, 265 AD2d 464, 465 466 [2d Dept 1999]; De Silva v Rosenberg, 129 AD2d 609, 611 [2d Dept 1987]). Thereafter, Justice Debra Silber of this Court directed, by short-form order dated Oct. 20, 2011, that the plaintiff mother submit to a continued pretrial deposition regarding her mental health. Plaintiffs appealed this order to the Second Department but later withdrew their appeal (see Roberts v Chaim Yanko, LLC, Motion No, 2011-11028, 2012 NY Slip Op 68132[U] [2d Dept, Mar. 22, 2012]). Thereafter, on Apr. 16, 2012, the plaintiff mother submitted to a continued pretrial deposition regarding her mental health, pursuant to Justice Silber's order. This further mitigates in favor of a finding of waiver.

* * *

Counsel to S.J. Fuel Co., Inc. is directed to serve on plaintiffs' and co-defendants' respective counsel a copy of this amended supplemental decision and order with notice of entry and to file proof of service thereof with the County Clerk.

The parties are reminded of their next appearance at the Settlement Conference Part on May 13, 2013, at 2:00 p.m. [*11]

This constitutes an amended supplemental decision and order of the Court.

E N T E R,

J. S. C. Footnotes

Footnote 1:All references to temperature are in degrees Fahrenheit.

Footnote 2:The Consumer Product Safety Commission also notes that "[b]urns will also occur with a six-second exposure to 140 degree water" (CPSC Safety Alert, Avoiding Tap Water Scalds, Publication 5098, No. 009611 032012) (available at http://www.cpsc.gov/PageFiles/121522/ 5098.pdf [accessed Feb. 19, 2013]).

Footnote 3:The thermostat had six temperature settings: "VERY HOT" at 160 degrees, "C" at 150 degrees, "B" at 140 degrees, "A" at 130 degrees, "HOT" at 120 degrees, and "LOW" at 80 degrees.

Footnote 4:Of note, the water heaters were not equipped with an optional mixing valve for reducing point-of-use temperature by mixing cold and hot water. According to Bernie Sr. the mixing valve was unnecessary because the temperature settings on the water heaters' thermostat were alone sufficient to ensure that he or any other installer could correctly select the water temperature by using the thermostat's own settings without the need for a mixing valve.

Footnote 5:See the contractor's affirmation in reply to additional opposition, dated Dec. 17, 2012, at 2, n 1. However, the parties are not bound to this theory for purposes of trial, as the record is unclear as to when the contractor delivered the water heaters to the building and when the subcontractor connected them to the gas and water lines. The Department of Buildings issued a limited alteration application permit for the installation of the water heaters on July 6, 2007, i.e., after the date of the accident. The permit applicant testified at his pretrial deposition that, as a matter of business practice, water heaters would be connected only after the Department of Buildings issued the permit.

Footnote 6:Although this branch of plaintiffs' cross motion for summary judgment dismissing the counterclaims against the plaintiff mother was served on July 26, 2012, which was after the court-imposed deadline of June 1, 2012 for the service of dispositive motions, only the building owner has objected to the untimeliness of this branch of plaintiffs' cross motion, and all parties have had adequate time to brief the issues that were raised by plaintiff. More importantly, whether the plaintiff mother's alleged negligence should not be considered in mitigation of defendants' liability, as argued by plaintiffs, is inextricably intertwined with the consideration of the building owner's timely motion, which argued that the plaintiff mother's alleged negligence should constitute an absolute defense to its liability (see Building Owner's Opening Memorandum of Law at 16 [stating that "(the plaintiff mother) can be held liable to Jacob for her negligent conduct at bar" and listing the reasons why]). The untimely branch of plaintiffs' cross motion for dismissal of the counterclaims against the plaintiff mother is based on "nearly identical" grounds as the building owner's timely motion and thus serves as good cause sufficient to permit review on the merits of the untimely branch of plaintiffs' cross motion for summary judgment dismissal of these counterclaims (see Lennard v Khan, 69 AD3d 812, 814 [2d Dept 2010]). In any event, "the court, in the course of deciding the timely motion, is . . . empowered to search the record and award summary judgment to a nonmoving party (see CPLR 3212 [b])" (Grande v Peteroy, 39 AD3d 590, 592 [2d Dept 2007]).

Footnote 7:See also Thurel v Varghese, 207 AD2d 220, 221 (2d Dept 1995) (mother who held her two-month-old infant in her arms while riding as a passenger in the backseat of a car was not liable in negligence when the child was killed as a result of an automobile accident); Russo v Osofsky, 112 AD2d 926 (2d Dept 1985) (where the infant plaintiff sustained burns to his hands when he fell onto a metal heating grate located on defendants' premises, the trial court erred in instructing the jury to consider whether the mother negligently supervised the child in determining liability both on the child's cause of action for personal injuries and the mother's derivative action for loss of services).

Similarly, the First Department in Kelly v Metropolitan Ins. & Annuity Co. (82 AD3d 16 [2011]) vacated the jury verdict and ordered a new trial, noting (at page 24) that:

"During summations, defense counsel was allowed, improperly, to comment on the father's failure to be next to [plaintiff] when his son lost control,' and on the mother's comments about how even with his training wheels, [the sidewalk bridge] was not the place to ride your bike.' The refusal to sustain an objection to the latter comment was error since the issue of parental supervision is irrelevant to this action brought in the name of the infant plaintiff."

Footnote 8:Although the Fourth Department in Cox v Cheaib, 231 AD2d 841, 841-842 (1996), refused to strike the defendants' counterclaim based upon the alleged active and affirmative negligence of the father who injured his son while bathing him, the decision was rendered in the context of a motion to dismiss, rather than, as here, on a motion for summary judgment. The Cox decision is an outlier, not followed by other courts. It was subsequently cited only twice: once by the Fourth Department for the general proposition that negligent supervision of a child may not be imputed to the child for the purpose of reducing his recovery (see M.F. v Delaney, 37 AD3d 1103, 1105 [2007]) and the other time by a lower court which criticized its holding and called it into doubt (see Ruffing v Union Carbide Corp., 186 Misc 2d 679, 688, n 7 [Sup Ct, Westchester County 2000]).

Footnote 9:Although plaintiffs have not moved for dismissal of affirmative defenses, including a "superseding cause" defense, it does not appear that the plaintiff mother's conduct in this case was so egregious or unforeseeable as to absolve defendants of liability as a matter of law. It is only when "the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, [that] it may well be a superseding act which breaks the causal nexus" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). However, "[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent" (Derdiarian, 51 NY2d at 316). Here, a foreseeable, normal, and natural result of the risk allegedly created by the building owner and the subcontractor of supplying excessively hot water to the apartment was that someone bathing in the tub could get scalded. The precise manner of the accident or the exact extent of the injuries does not preclude liability as a matter of law where, as here, the general risk and character of injuries are foreseeable (Derdiarian, 51 NY2d at 316-317). If, as plaintiffs assert, the tub's hot water faucet was out of order, plaintiff mother's intervening act of attempting to shut off hot water by using a standalone valve on the bathroom's opposite wall — while letting go of her son who then fell under the stream of hot water flowing out of the tub's faucet — was not so unforeseeable as to constitute a superseding cause (accord Soto v New York City Tr. Auth., 6 NY3d 487, 492 [2006] [plaintiff's reckless conduct in entering the catwalk — a three-foot wide path abutting the track — after consuming alcohol and attempting to catch the train was not a superseding cause precluding the finding of defendant's liability in failing to timely stop a subway train]). To the extent that the defendants claim that the plaintiff mother's prior failure to take a prescription medication for her bipolar disorder constituted a superseding cause of her son's accident, such claim is devoid of proof as it is unsupported by any expert evidence (accord Wood v State, 45 AD3d 1198 [3d Dept 2007] [claimant's failure to present expert testimony as to the effects of the allegedly short length of crutches upon his medical condition was fatal, since such information lies outside the experience and knowledge of a layperson]).

Footnote 10:See also Horn v Hires, 84 AD3d 1025, 1025-1026 (2d Dept 2011) (dismissing the action by tenant who, because of the lack of hot water in the apartment, was boiling water on her stove and was scalded when she accidentally tipped the pots with hot water); Tigulla v Porzio, 255 AD2d 504, 505 (2d Dept 1998) (dismissing the action by a child who was burned when he tipped over a bucket of hot water which his father had left unattended in the bathtub); Gomez v City of New York, 249 AD2d 362, 363 (2d Dept 1998) (dismissing the action brought by infant plaintiff who fell into the tub as she was attempting to retrieve a toothbrush which had fallen into the bathtub filled with scalding hot water).

Footnote 11:According to the DSM-IV-TR classification, there are three types of bipolar disorder (Bipolar I, Bipolar II, and Bipolar NOS [Not Otherwise Specified]), but the record is silent regarding the type of the plaintiff mother's bipolar order.