One World Wireless, Inc. v Lugo

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One World Wireless, Inc. v Lugo 2019 NY Slip Op 33370(U) November 17, 2019 Supreme Court, New York County Docket Number: 157460/2016 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 157460/2016 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 11/13/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH 'PART Justice ---------------------------------------------------------------------------------X INDEX NO. ONE WORLD WIRELESS, INC., Plaintiff, IAS MOTION 32 157460/2016 MOTION DATE N/A MOTION SEQ. NO. 002 -vDECISION + ORDER ON MOTION JOSEPH LUGO, Defendant. ----------------------------------------------~----------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42,43,44,45,46,47,48,49, 50,51, 52, 53,54, 55, 5~,57, 58,60,61,62,6~64 JUDGMENT-SUMMARY were read on this motion to/for The motion by defendant for _summary judgment dismissing this case is granted. 1 Background This property damage case arises out of a water leak from defendant's kitchen sink that occurred at 263 West 23rd Street in Manhattan. Defendant owns an apartment on the second floor · and plaintiff operated a Verizon store in the commercial unit located directly below defendant's unit. On November 7, 2015, plaintiffs principal (Mr. Singh) received a call that there was a leak in the store. Plaintiff contends that when he got to his.business, he observed about two. I 1 Although the notice of motion purports to move in this case and in a related action (Index No. 160305/2018), that 1s procedurally improper. Movant needs to make a motion in that other case. Moreover, no RJI has been filed in the 160305/2018 action and, therefore, the undersigned has not been assigned that case. 157460/2016 ONE WORLD WIRELESS, INC. vs. LUGO, JOSEPH Motion No. 002 1 of 6 Page 1of6 [* 2] INDEX NO. 157460/2016 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 11/13/2019 inches of water on the floor and that his merchandise had serious water damage. Plaintiff believes he received about $45,000 from his insurance company. Defendant purchased the apartment with his husband in 2011 and lived there from May 2012 through July 20.14. He claims that he never observed any leaks from his kitchen sink and points out that he had a new sink installed before he moved in. Defendant later leased the apartment in July 2014 and was not living in the unit on the day of the leak. The tenant~ living in the apartment insisted that they never observed any leaks from the kitchen sink while living there before the November 2015 incident. On the day of the leak, one of the tenants claimed he saw water in the kitchen and \ cleaned it up. Then, a short time later, he saw more water on the kitchen floor and opened the cabinet under the sink and discovered a serious leak. The tenant claims he told the building .and the water was eventually shut off-he estimated the water leaked for about 30-45 minutes. Defendant moves for summary judgment dismissing the case on the ground that he did not cause the defective condition nor did he have notice of the leak. In opposi~ion, plaintiff contends that there are issues of fact arising out of defendant's right to re-enter the property, that defendant created the condition by hiring an unlicensed contractor to install the sink, defendant. should.have inspected the sink and res ipsa loquitor applies. Discussion To be entitled to the remedy of summary judgment, the moving party "must make a ' prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case" (Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima 157460/2016 ONE WORLD WIRELESS, INC. vs. LUGO, JOSEPH Motion No. 002 · 2 of 6 Page 2 of 6 [* 3] INDEX NO. 157460/2016 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 11/13/2019 facie showing requires denial of the motion, regardless of the sufficieii~y of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101AD3d490, 492, 955 NYS2d 589 [1st Dept 2012]). Once a movant meets its initial burden, the burden shifts to the opponent, who must then ·~. produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City ofNew York, 49 NY2d 557, 560, 427 NYS2d 595 [i980]). The court's task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d499, 505, 942 NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [l~t Dept 2002];qffd 99 NY2d 647, 760 NYS2d 96 [2003]). "In order to prevail on a negligence claim, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Pasternack v Laboratory Corp. ofAmerica Holdings, 27 ~Y3d 817, 825, 37 NYS3d 750 [2016]). "A party who possesses real property, eith"er as an owner or as a tenant, is under a duty to exercise reasonable care,to maintain that property in a safe condition... However, there is no legal duty to protect against an occurrence which is extraordinary in nature and would not suggest itself to a reasonably careful and prudent person as one which should be guarded against" (Martinez v Santoro, 273 AD2d 448, 448, 710 NYS2d ~74 [2d Dept 2000]). · 157460/2016 ONE WORLD WIRELESS, INC. vs. LUGO, JOSEPH Motion No. 002 • 3 of 6 Page 3 of 6 \ [* 4] INDEX NO. 157460/2016 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 11/13/2019 an initial matte~, .there is no dispute that neither · The Court grants the motion. As defendant nor the tena~ts living In the apartment experienced any leaks from May 2012 u.ntil the accident. The account provided by the tenant suggests he discovered the leak and, once he realized it was serious, he took steps to remedy the issue. Simply put, the Court _is unable to find that defendant had a duty to inspect his sink. A reasonably prudent person owning an apartment does not conduct regular inspections ofl:heir sink without having a reason to check the sink (i.e,, experiencing leaks). The.Court declines to find that an issue of fact exists because defendant did not hire a plumber to look at a sink that appeared to be functioning normally. The defendant's right to reenter the property is not relevant to the instant motion. The right to reenter does not.raise an issue of fact about whether defendant breached a duty to plaintiff. The fact is that there was a leak and neither defendant nor his tenants noticed any prior leaks from the kitchen sink. · ' The Court also rejects plaintiffs arguments concerning the purported unlicensed contractor. Even if the contractor was unlicensed, that does not mean that defendant can be held liable on this record: Plaintiff failed to attach any evidence, such an expert's report, suggesting \ that the leak arose because of the faulty installation of the sink in 2012. If defendant had hired an unlicensed contractor whose shoddy installation caused the leak, then plaintiff would have a much stronger argument concerning defendant's purported negligence. But a speculative claim . . . . r / . that defendant is negligent because he may have hired someone without a license does not create an issue of fact especially where the record shows the sink worked for more than three years before the leak without any problems. 157460/2016 ONE WORLD WIRELESS, INC. vs. LUGO, JOSEPH Motion No. 002 4 of 6 Page 4 of 6 \ [* 5] INDEX NO. 157460/2016 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 11/13/2019 Res ipsa does not apply here either. "In order to submit a case to a trier of fact based on [res ipsa], a plaintiff must establish that the event ( 1) was of a kind that ordinarily does not occur in the absence of someone's negligence; (2) was caused by an agency or iiistrumentality within the exclusive control of the defendant and (3) was not due to any voluntary action or contribution on the part of the plaintiff' (Singh v United Cerebral Palsy ofNew York City, Inc., 72 AD3d 272, 276-77, 896 NYS2d 22 [1st Dept 201 O] [internal quotations and citation omitted]). The water leak here purportedly happened when a ball valve broke. Plaintiff provided no sufficient reason to conclude that this type of incident only happens due.to someone's negligence and the Court is unable to find that defendant had complete contro! over the instrumentality that caused the leak. Obviously, water leaks can occur due to a myriad ofreasons outside the control of an apartment owner. Pipes may freeze, there may be a sudden change in water pressure or there could have been an issue stemming from another unit owner's pipes. Defendant does not have exclusive control over the water throughout the entire apartment building. And, as stated above, plaintiff offered no evidence to suggest exactly how the accident occurred. I Summary The Court recognizes that plaintiff did nothing \vrong here. He was running his business when a leak damaged his merchandise. But plaintiffs claim appears to be thatdefendant should be liable for the leak simply because the leak came from his apart~;nt. Unfortunately for plaintiff, that supports a claim based on strict liability;not a cause of action for negligence. Just .because a leak occurred does not mean that defendant is negligent. Sometimes, accidents happen where no party is at fault and, here, plaintiff did not sufficiently establish an issue of fact that defendant created the leak or had actual or constructive notice about any problems with his sink. 157460/2016 ONE WORLD WIRELESS, INC. vs .. LUGO, JOSEPH Motion No. 002 5 of 6 Page 5 of 6 [* 6] INDEX NO. 157460/2016 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 11/13/2019 Accordingly, it is hereby ORDERED that the moti<?n by defendant for summary judgment is granted, this case is dismissed, with costs, and the clerk is directed to enter judgment according! CHECK ONE: CASE DISPOSED GRANTED ' ' .A D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN • ~if Ji: BLUTH N-FINM~.s1.~qtitLf;NJ.l. p~ ~LUTH No. GRANTED IN PART SUBMIT ORDER 157460/2016 ONE WORLD WIRELESS, INC. vs. LUGO, JOSEPH Motion'No. 002 6 of 6 FIDUCIARY APPOINTMENT - LJ OTHER . D REFERENCE ., Page 6 of 6

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