Opinion
February 9, 1999
Appeal from the Supreme Court, Bronx County (Kenneth Thompson, Jr., J.).
The infant plaintiff Harrison Gomez (Harrison) and his mother Lucy DeJesus (DeJesus) brought this negligence action after Harrison was severely burned by coming into contact with an exposed radiator steam pipe in their apartment. The accident occurred on December 3, 1995, when Harrison was 18 months old. DeJesus had complained about this dangerously exposed pipe to various building personnel from 1990 to 1995, with no success.
At all times relevant to this action, defendant-appellant Walton Realty Associates (Walton) owned the apartment building at 975 Walton Avenue in the Bronx where plaintiffs resided. However, in 1992, due to Walton's default on a mortgage, the property went into receivership. Defendant-respondent Joel Gendels (Gendels) was appointed as receiver by the United States District Court for the Southern District. The District Court's order prohibited Walton from "interfering in any manner with the Property," and gave Gendels sole authority to manage the building. On this basis, Walton contends that it had no liability to plaintiffs regarding the steam pipe. Gendels and Walton asserted cross-claims against each other for contribution and indemnification.
The IAS Court denied Walton's motion for summary judgment on the grounds that "issues of fact exist as to whether the condition existed and notice was given before the appointment of a receiver." We find that the IAS Court erred in denying the motion because it failed to take into account controlling law on the subject of an out-of-possession landlord's liability.
An out-of-possession owner who has relinquished control over the premises will not be held liable for subsequent injuries resulting from dangerous conditions on the premises ( Johnson v. Urena Serv. Ctr., 227 A.D.2d 325, 326, lv denied 88 N.Y.2d 814). Although Multiple Dwelling Law § 78 Mult. Dwell. imposes on the owner of an apartment building a non-delegable duty to maintain the premises in a safe condition, no liability will be imposed on an owner who has completely surrendered possession and control of the building, unless the owner retained the right of re-entry to inspect and repair ( Garcia v. Dormitory Auth., 195 A.D.2d 288, 289). Here, at the time of the accident, Walton had been divested of possession and barred from taking any role in the management of the building. These facts sufficed to make out a prima facie case of entitlement to summary judgment ( see, Matos v. New York City Educ. Constr. Fund, 151 Misc.2d 1044, 1047), which plaintiffs did not controvert by proffering any lease or other document to show that Walton retained a significant right of re-entry. Once the moving party has made out a prima facie case, the opponent "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Plaintiffs have not met their burden.
With respect to the time period before the property was in receivership, namely 1990 to 1992, Walton arguably had notice of the dangerously exposed pipe, but should nevertheless not be held liable because Gendels had a reasonable time to discover and repair the defect. In Bittrolff v. Ho's Dev. Corp. ( 77 N.Y.2d 896, 898-899), the Court of Appeals held that a prior owner is not liable for a dangerous condition that existed at the time of the conveyance, unless the new owner has not had a reasonable time to discover and remedy the condition.
The Second Department case of Mazurick v. Chalos ( 172 A.D.2d 805), which applied this principle in a receivership situation, is directly on point. The Court granted the out-of-possession owners' motion for summary judgment where the property had been in the possession and control of a court-appointed receiver for two years prior to the incident and the owners had been enjoined from interfering with the receiver's management of the property. "Even if the alleged defective condition on the property had existed prior to the appointment of the receiver, the owners' liability for that condition ended when possession and control passed prior to the injury, and the receiver had a reasonable time to discover and repair the condition" ( Mazurick v. Chalos, supra, at 806). Alternatively, it could be argued that any negligence on Walton's part in failing to cover the exposed pipe was not the proximate cause of Harrison's injuries, since Gendels had notice of the problem for several years and was the party responsible for remedying it at the time of Harrison's accident. For the above reasons, the complaint and cross-complaint are dismissed as against Walton.
Concur — Sullivan, J. P., Rosenberger, Nardelli and Rubin, JJ.