Opinion
2014-01-21
Yuliana HERNANDEZ, Plaintiff–Respondent, v. 21 REALTY CO., et al., Defendants–Appellants.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Tracy P. Hoskinson of counsel), for appellants. Shapiro Law Offices, PLLC, Bronx (Ernest S. Buonocore of counsel), for respondent.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Tracy P. Hoskinson of counsel), for appellants. Shapiro Law Offices, PLLC, Bronx (Ernest S. Buonocore of counsel), for respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered December 24, 2012, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants' motion was properly denied in this action where plaintiff was injured when she slipped on an accumulation of water and fell in the bathroom of her apartment in a building owned and managed by defendants. The water that caused plaintiff's fall came from a leak in the bathroom ceiling. The record shows that issues exist as to whether defendants had notice of the leak in the ceiling. Defendants failed to demonstrate that they owed no duty to plaintiff. Moreover, the conflicting expert affidavits, as well as plaintiff's deposition testimony as to the manner in which she fell, raise issues that are inappropriate for summary judgment ( see e.g. Bradley v. Soundview Healthcenter, 4 A.D.3d 194, 772 N.Y.S.2d 56 [1st Dept.2004] ).
The court also properly determined that issues remain as to the applicability of the doctrine of res ipsa loquitur, including whether the leaking ceiling causing an accumulation of water on the bathroom floor was in the exclusive control of defendants ( see Mejia v. New York City Tr. Auth., 291 A.D.2d 225, 227, 737 N.Y.S.2d 350 [1st Dept.2002] ). Furthermore, the court properly considered the tax returns submitted in opposition to defendants' motion as some support for plaintiff's claim of lost wages. TOM, J.P., SAXE, MOSKOWITZ, GISCHE, CLARK, JJ., concur.