Opinion
2013-05-1
Deianera MORA, etc., respondent, v. CAMMEBY'S REALTY CORP., appellant.
Margaret G. Klein (Mauro Lilling Naparty, LLP, Great Neck, N.Y. [Matthew W. Naparty and Timothy J. O'Shaughnessy], of counsel), for appellant. Bruce Montague, Bayside, N.Y. (Steven B. Drelich of counsel), for respondent.
Margaret G. Klein (Mauro Lilling Naparty, LLP, Great Neck, N.Y. [Matthew W. Naparty and Timothy J. O'Shaughnessy], of counsel), for appellant. Bruce Montague, Bayside, N.Y. (Steven B. Drelich of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 7, 2012, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, an infant, allegedly was injured when she came into contact with a hot, uninsulated steam pipe in a vacant apartment owned by the defendant. The plaintiff's father testified at his deposition that the pipe had a coating of wet paint, which was “like a glue” and prevented her from immediately removing her hands. Prior to the accident, no warnings were issued by the defendant's superintendent to the plaintiff's father and grandmother, who were also present. The plaintiff, by her mother, commenced this action, alleging negligence. The defendant moved for summary judgment dismissing the complaint and the Supreme Court denied the motion.
Under the circumstances of this case, the defendant's motion for summary judgment was properly denied. Contrary to the defendant's contention, it failed to establish, prima facie, that various provisions in the 1968 version of the Administrative Code of the City of New York (hereinafter the Administrative Code) were inapplicable ( see Lesocovich v. 180 Madison Ave. Corp., 81 N.Y.2d 982, 985, 599 N.Y.S.2d 526, 615 N.E.2d 1010;Pappalardo v. New York Health & Racquet Club, 279 A.D.2d 134, 140, 718 N.Y.S.2d 287), that the steam pipe was properly maintained on the date of the accident ( see Bohan v. F.R.P. Sheet Metal Contr. Corp., 58 A.D.3d 781, 872 N.Y.S.2d 168;O'Boy v. Motor Coach Indus., Inc., 39 A.D.3d 512, 513–514, 834 N.Y.S.2d 231), that the hot, freshly painted, and uninsulated steam pipe did not constitute a dangerous condition ( see Salomon v. Prainito, 52 A.D.3d 803, 805, 861 N.Y.S.2d 718;Galieta v. Young Men's Christian Assn. of City of Schenectady, 32 A.D.2d 711, 711–712, 300 N.Y.S.2d 170), or that the plaintiff's accident was not foreseeable ( see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 316–317, 434 N.Y.S.2d 166, 414 N.E.2d 666;Delaney v. First Concourse Mgt. Co., 275 A.D.2d 233, 233–234, 712 N.Y.S.2d 516).
The defendant's contentions with respect to Multiple Dwelling Law §§ 77(4) and 78(1), and pre–1968 versions of the Administrative Code, are raised for the first time on appeal, and therefore are not properly before this Court. We have not considered the defendant's remaining contentions, which were raised for the first time in its reply papers before the Supreme Court ( see Petito v. City of New York, 95 A.D.3d 1095, 1096, 944 N.Y.S.2d 300;Liriano v. Eveready Ins. Co., 94 A.D.3d 716, 717, 941 N.Y.S.2d 509).