Holloway v. New York City Housing Authority

Full title: DAMIEN HOLLOWAY, an infant under the age of 18 Years old by his m/n/g…

Court: Supreme Court of the State of New York, New York County

Date published: Mar 27, 2008

2008 N.Y. Slip Op. 30889 (N.Y. Sup. Ct. 2008)

Opinion

0110924/2006.

March 27, 2008.

DECISION and ORDER

JANE S. SOLOMON, J.

PAPERS NUMBERED 1-3 4-5 6-7

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits . . . Answering Affidavits — Exhibits Replying Affidavits Cross-Motion: [ ]Yes [ ]No

Upon the foregoing papers, it is ordered that this motion is decided in accordance with the annexed memorandum decision and order.

In this personal injury action defendant New York City Housing Authority ("NYCHA") moves for summary judgment dismissing the Complaint. Plaintiffs oppose the motion, which is granted as follows.

In October 2004, plaintiff Teshanna Smith ("Smith") lived together with her grandmother and her son, the infant-plaintiff Damien Holloway ("Holloway"), in Apartment 1B (the "Apartment") in the residential building located at 180 West 152^nd Street in Manhattan (the "Building"). The Building is part of housing development known as the Harlem River Houses, which is owned and managed by NYCHA. According to NYCHA's Development Data Book, the Harlem River Houses were completed on October 1, 1937, and NYCHA's records further indicate that no alterations exceeding 60% of the Building's value were made during any twelve-month period since its completion.

On October 20, 2004, at approximately 5:00 PM, Holloway was approximately 10 months old and was in his wooden crib while Smith was folding laundry. The crib was placed directly adjacent to an uninsulated vertical heating pipe that is located in the corner of the room and runs from the floor to the ceiling. Smith alleges that when she turned away for a minute, Holloway started to scream. She states that when she looked up, her son was standing by the headboard of his crib, and that he had apparently reached out of the crib and severely burned his hands on the heating pipe.

This vertical riser, which carries steam, is one of many such pipes that run from the basement of each building in the development and extend through the individual apartments. The risers are attached to radiators in individual apartment units through horizontal branch pipes. The Building has heating plant technicians that record data regarding the operation of the Building's boilers, including the condensate temperature and the boiler steam pressure.

Smith commenced this action on behalf of herself and Holloway in or around July 2006, alleging that NYCHA was liable for Holloway's injuries because it failed to insulate the heating pipe. Smith also asserts a derivative claim. NYCHA now moves for summary judgment arguing that it had no legal duty to cover or insulate the pipe, it acted in conformity with prevailing practices, and that the accident was caused by Smith's improper placement of the crib.

New York City Administrative Code § 27-809, which requires building owners to insulate heating pipes, was enacted in 1968, and Administrative Code §§ 27-111, 27-115 and 27-116 provide that buildings constructed prior to its enactment are not subject to the statute's requirements unless they have undergone substantial renovations. NYCHA has provided sufficient evidence to show that the Building was constructed 31 years before the statute was enacted, and that it has not undergone substantial renovations since 1968. The 1916 building code — which applies to the Building — does not require heating pipes to be insulated. Thus, the Building is protected by the grandfathering provisions of the 1968 statute, and NYCHA was under no statutory duty to insulate the heating pipe (see Sanchez v. Biordi, 259 A.D.2d 434 [1^st Dep't 1999]., lv denied 94 N.Y.2d 754; Hymah v. Queens County Vanop, Inc., 307 A.D.2d 984 [2^nd Dep't 2004], aff'd 3 N.Y.3d 743).

Moreover, even if Administrative Code § 27-809 did apply, the statute does not require insulation on a heating pipe which carries a fluid of less than 250° F and where "insulation would interfere with the functioning of the system." NYCHA has presented the affidavit of an engineering expert that states, based on his review of the pertinent records, that the condensate temperature was 120° F on the day of the incident. The expert also opines that "one-quarter of the heat generated by the radiator and heating pipe would be lost if the pipe was insulated with one-inch snap-on fiberglass insulation" (Affidavit of Leonard Weiss, Ex. J to NYCHA's Motion ¶ 6). Plaintiffs have not submitted an affidavit of an expert to refute this opinion, and have thus not raised a material issue of fact regarding the applicability of the statute or NYCHA's purported violation of it.

Further, under these circumstances, NYCHA was also under no common law duty to insulate the heating pipe. See Isaacs v. West 34th Apts, Corp., 36 A.D.3d 414 (1^st Dep't 2007); Bruno v. New York City Hous. Auth., 21 A.D.3d 760 (1^st Dep't 2005).

Accordingly, it hereby is

ORDERED that NYCHA's motion for summary judgment under CPLR § 3212 is granted, the Complaint is dismissed in its entirety, and the clerk is directed to enter judgment accordingly with costs and disbursements as taxed.