Opinion
155797/2018
07-23-2020
Carey ALLEN, Plaintiff, v. 244-246 EAST 7TH STREET INVESTORS LLC, Slate Property Group LLC, and MGT Property Management, LLC, Defendants.
Salenger, Sack, Kimmel & Bavaro, LLP (Beth S. Gereg and Steve Z. Gokberg of counsel), for plaintiff. Rosenbum & Taylor, P.C. (Mark E. Jordan-Poinsette of counsel), for defendants.
Salenger, Sack, Kimmel & Bavaro, LLP (Beth S. Gereg and Steve Z. Gokberg of counsel), for plaintiff.
Rosenbum & Taylor, P.C. (Mark E. Jordan-Poinsette of counsel), for defendants.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63 were read on this motion to/for PARTIAL SUMMARY JUDGMENT.
In this wrongful-death action, plaintiff, Carey Scott Allen, as the administrator of the estate of his deceased brother, Archie Brown Allen, moves under CPLR 3212 for partial summary judgment on the issue of liability and for a jury trial on damages.
Background
The decedent was a 71-year old occupant of apartment No. 4 in the premises located at 422 East 7th Street, New York, New York (premises). Defendant 244-246 East 7th Street Investors LLC (Investors) owns the premises. Defendant MGT Property Management, LLC (MGT) is Investors' managing agent for the premises. Defendant Slate Property Group LLC (Slate) is MGT's parent company.
This wrongful-death action involves a fire that broke out in decedent's apartment on March 18, 2018. Decedent was asleep in his bedroom when a fire broke out in his bed. Although he was able to escape from his bedroom, he was unable to leave his apartment. Firefighters discovered decedent's body propped up against a wall in his living room. After a search, firefighters found no smoke detector in the apartment. According to the report of the New York City Fire Department's Fire Marshal, the fire initiated in decedent's southeast bedroom, and decedent's death was the result of smoke and soot inhalation, as well as thermal burns. Decedent's autopsy report concurs with the Fire Marshal Report about the cause of death.
On June 20, 2018, plaintiff filed his complaint, which alleges defendants' negligence and breach of the implied warranty of habitability. Plaintiff specifically alleges that defendants were negligent in failing to install a smoke or fire detector in decedent's apartment before the fire and in failing properly to inspect and maintain the premises. Plaintiff also alleges that defendants violated New York City Administrative Code §§ 27-979, 27-981, 27-2045, and 28-301.1, relating to fire safety and prevention.
Plaintiff now moves for summary judgment on the issue of liability. The motion is denied.
Discussion
A party moving for summary judgment "must make a prima face showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." ( Winegrad v. NY Univ. Med. Ctr ., 64 NY2d 851, 853 [1985].) Once a plaintiff has provided evidence to support judgment as a matter of law, "the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial." ( Kershaw v. Hospital for Special Surgery , 114 A.D.3d 75, 82 [1st Dept. 2013].)
When evaluating a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing the motion. ( Martin v. Briggs , 235 A.D.2d 192, 196 [1st Dept. 1997].) Applying that principle here, this court finds that plaintiff does not, on its motion, eliminate all material issues of fact.
First, there is an issue of fact about whether defendants satisfied their duty to install a smoke detector in decedent's apartment in 2017. "It is well settled that it is the obligation of the owners to install an operational smoke detector in each dwelling unit." ( Peyton v. State of Newburgh, Inc. , 14 A.D.3d 51, 53 [1st Dept. 2004].) In New York City, this obligation is codified in Administrative Code § 27-2045. ( Acevedo v. Audubon Mgt., Inc. , 280 A.D.2d 91, 94 [1st Dept. 2001].) Once the owner has fulfilled this requirement, tenants assume the responsibility to maintain, repair, and replace smoke detectors. ( Figueroa v. Parkash , 179 A.D.3d 583, 583 [1st Dept. 2020] ; Tucker v. 64 W. 108th St. Corp. , 2 A.D.3d 193, 194 [1st Dept. 2003].) Here, MGT's director of property management, Donny Hochberg, testified at his deposition that he was present when Mr. Tejada, the superintendent, installed a smoke detector near the kitchen in decedent's apartment in October or November 2017. If one credits Hochberg's testimony, the decedent was solely responsible for maintaining that smoke detector after its installation. Therefore, Hochberg's deposition testimony raises a triable issue of fact about whether a smoke detector was properly installed (and what happened to that detector thereafter).
Plaintiff contends that the conclusions from the Fire Marshal report and an affidavit from plaintiff's expert witness Eugene West (himself a former New York City fire marshal) indicate that that no smoke detector was found at the scene of the fire—and thus that Hochberg and Tejada could not have installed the smoke detector in the apartment in 2017. Plaintiff also notes that defendants have not offered any evidence that it was installed. But these potentially conflicting pieces of evidence raise credibility questions that must be assessed by a fact-finder at trial. ( Colazo v. Tower 45 Assoc. Inc. , 209 A.D.2d 339, 339 [1st Dept. 1994].)
Plaintiff alternatively contends that even if a smoke detector were installed as Hochberg testified, defendants were negligent in installing the device in the kitchen, given that the Administrative Code § 27-981 requires smoke detectors to be placed within 15 feet of all sleeping areas. But plaintiff has not introduced evidence demonstrating that the placement of the smoke detector did, in fact, violate § 27-981. Additionally, a violation of the City Administrative Code is merely "evidence of negligence," not negligence per se. (Baez v. 1749 Grand Concourse LLC , 179 A.D.3d 520, 522 [1st Dept. 2019].) Plaintiff has not shown as a matter of law that Hochberg and Tejada would have acted negligently by installing a smoke detector in decedent's kitchen.
Finally, this court is not persuaded by plaintiff's argument that Hochberg acted negligently as a matter of law by failing to respond immediately upon being informed that there was no smoke detector in the decedent's apartment. Hochberg acknowledged at his deposition that on Saturday March 17, 2018, he had received an online notice of an Administrative Code violation from the Housing Preservation Department, regarding the lack of a smoke detector in decedent's apartment. Hochberg testified that he sent an email to his assistant that day to direct that action be taken on Monday, since the assistant did not work on weekends. The fire occurred the following day. Whether Hochberg acted reasonably in directing that corrective action be taken on the following Monday, rather than immediately, is a jury question. (See Parietti v. Wal-Mart Stores , 29 N.Y.3d 1136, 1137 [2017] [finding issues of fact as to whether Wal-Mart had a "reasonable time to correct or warn about" the existence of hazardous conditions precluded summary judgment].)
Because questions of fact exist involving defendants' alleged breach of duty, this court does not reach the parties' arguments about proximate cause.
Accordingly, it is
ORDERED that plaintiff's motion under CPLR 3212 for partial summary judgment on the issue of liability is denied.