Opinion
6611 M–1651 M–1756 Index 160778/14
05-03-2018
Barrie SHACKMAN, et al., Plaintiffs–Respondents, v. 400 EAST 85TH STREET REALTY CORP., Defendant–Appellant.
Gartner + Bloom, P.C., New York (William M. Brophy of counsel), for appellant. Lambert & Shackman, PLLC, New York (Thomas C. Lambert of counsel), for respondents.
Gartner + Bloom, P.C., New York (William M. Brophy of counsel), for appellant.
Lambert & Shackman, PLLC, New York (Thomas C. Lambert of counsel), for respondents.
Acosta, P.J., Tom, Mazzarelli, Kern, Singh, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered April 4, 2017, which, insofar as appealed from, granted plaintiffs' motion for partial summary judgment on the negligence, private nuisance, rent abatement, and constructive eviction causes of action, unanimously modified, on the law, to deny the motion as to the nuisance cause of action, and otherwise affirmed, without costs.
With respect to the negligence cause of action, the undisputed evidence demonstrates that defendant was aware of deficiencies in the building's HVAC system that rendered the system prone to causing floods of the type that damaged plaintiffs' apartment and that it failed to perform any of the maintenance and repair work that its own expert engineer agreed would have prevented the floods, namely, snaking or flushing out the HVAC piping. The court providently exercised its discretion in finding plaintiffs' expert architect competent, based on his training and experience, to opine on the maintenance of an HVAC system located in the walls of the building (see Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 398–399, 34 N.E.2d 367 [1941] ; Edgewater Apts. v. Flynn, 216 A.D.2d 53, 54, 627 N.Y.S.2d 385 [1st Dept. 1995] ; see also Rapp B. Props., LLC v. RLI Ins. Co., 65 A.D.3d 923, 925, 885 N.Y.S.2d 283 [1st Dept. 2009], lv denied 13 N.Y.3d 714, 895 N.Y.S.2d 313, 922 N.E.2d 902 [2009] ). The court also properly considered the unsigned transcripts of the deposition testimony of defendant's building superintendent and property manager since defendant failed to return signed copies of the transcripts to plaintiffs within 60 days ( CPLR 3116[a] ) and does not challenge the accuracy of the transcripts (see Gomez v. Shop–Rite of New Greenway, 110 A.D.3d 483, 484, 973 N.Y.S.2d 65 [1st Dept. 2013] ).
The decretal paragraph of the order notwithstanding, it is apparent from the discussion of the private nuisance cause of action that the motion court found, correctly, that plaintiffs failed to establish their prima facie case because they did not show a recurrence of the leaking during the three-year statutory limitations period (see Domen v. Holding Co. v. Aranovich, 1 N.Y.3d 117, 124, 769 N.Y.S.2d 785, 802 N.E.2d 135 [2003] ; Duane Reade v. Reva Holding Corp., 30 A.D.3d 229, 237, 818 N.Y.S.2d 9 [1st Dept. 2006] ). Thus, we modify the order to reflect the court's determination that plaintiffs are not entitled to summary judgment on the nuisance cause of action.
Plaintiffs established their entitlement to summary judgment on the rent abatement cause of action, under both Real Property Law § 235–b and their proprietary lease, by their undisputed submissions showing that the floods caused by defendant's negligence "materially affect[ed]" their health and safety and deprived them of the use of a significant portion of their apartment (see Park W. Mgt. Corp. v. Mitchell, 47 N.Y.2d 316, 327–328, 418 N.Y.S.2d 310, 391 N.E.2d 1288 [1979], cert denied 444 U.S. 992, 100 S.Ct. 523, 62 L.Ed.2d 421 [1979] ; Witherbee Ct. Assoc. v. Greene, 7 A.D.3d 699, 700–701, 777 N.Y.S.2d 200 [2d Dept 2004] ).
Similarly, plaintiffs are entitled to summary judgment on the constructive eviction cause of action because they demonstrated that the leak " ‘substantially and materially deprived [them] of the beneficial use and enjoyment of the [entire] premises’ " ( Pacific Coast Silks, LLC v. 247 Realty, LLC, 76 A.D.3d 167, 172, 904 N.Y.S.2d 407 [1st Dept. 2010], quoting Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83, 308 N.Y.S.2d 649, 256 N.E.2d 707 [1970] ; see Bostany v. Trump Org. LLC, 88 A.D.3d 553, 554, 931 N.Y.S.2d 280 [1st Dept. 2011] ). Defendant argues that plaintiffs are not entitled to summary judgment on this cause of action because it is duplicative of the rent abatement cause of action and may only be asserted as a defense (see Elkman v. Southgate Owners Corp., 233 A.D.2d 104, 649 N.Y.S.2d 138 [1st Dept. 1996] ). This argument, having been made for the first time in reply on appeal, is unpreserved for our review (see Wolkstein v. Morgenstern, 275 A.D.2d 635, 637, 713 N.Y.S.2d 171 [1st Dept. 2000] ).
Plaintiffs, who did not appeal from the parts of the order that denied their motion, request that we search the record and grant them full relief as to, inter alia, damages, attorneys' fees, and punitive damages (see CPLR 3212[b] ; Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d 1077 [1984] ). Their arguments in support of this request are without merit.