The Supreme Court providently exercised its discretion in denying the plaintiffs request to read into the record the deposition testimony of a witness he claimed was unavailable. The plaintiff failed to demonstrate that he made diligent efforts to locate the witness, and the proffered testimony was, in any event, irrelevant ( see CPLR 3117 [a] [3]; Nedball v Tellefsen, 102 Misc 2d 589, 591; see also Daughtery v City of New York, 137 AD2d 441, 445).
Moreover, "because the determination of legal causation turns upon questions of foreseeability and `what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve'" ( Kriz v Schum, 75 NY2d 25, 34, quoting Derdiarian v Felix Contr. Corp., supra at 315; see Megally v LaPorta, 253 AD2d 35, 43). Here, the respondents failed to establish as a matter of law that the appellants' injuries were not a foreseeable consequence of the respondents' alleged negligence in installing an aquastat probe and in failing to install a mixing valve, or that their alleged negligence was not a proximate cause of the injuries ( see Bingham v Louco Realty, LLC, 36 AD3d 845; Gottlieb v 31 Gramercy Park S. Owners Corp., 276 AD2d 417; Parker v New York City Hous. Auth., 203 AD2d 345; Tirella v American Props. Team, 145 AD2d 724; Daughtery v City of New York, 137 AD2d 441; Muhaymin v Negron, 86 AD2d 836). We find that the case of Rivera v City of New York ( 11 NY2d 856), is not controlling. Accordingly, the Supreme Court should have denied those branches of the respondents' separate motions which were for summary judgment dismissing the respective complaints insofar as asserted against them.
Moreover, "because the determination of legal causation turns upon questions of foreseeability and `what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve'" ( Kriz v Schum, 75 NY2d 25, 34, quoting Derdiarian v Felix Contr. Corp., supra at 315; see Li v Midland Assoc. LLC, 26 AD3d 473). Here, the defendants failed to establish as a matter of law that the plaintiff's injuries were not a foreseeable consequence of their alleged negligence in improperly repairing the running hot water faucet in his apartment, or that their alleged negligence was not a proximate cause of his injuries ( see Mercedes v Menella, 34 AD3d 655; Li v Midland Assoc. LLC, supra; Gottlieb v 31 Gramercy Park S. Owners Corp., 276 AD2d 417; Parker v New York City Hous. Auth., 203 AD2d 345; Daughtery v City of New York, 137 AD2d 441; Pagan v Goldberger, 51 AD2d 508). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
The infant plaintiff was allegedly burned by scalding water when his brother accidentally turned off the cold water in the sink in which the infant plaintiff was being bathed. Despite the defendant's contention, we find that it cannot be said, as a matter of law, that its alleged negligence, in supplying excessively hot water to the infant plaintiff's apartment, was not a proximate cause of the infant's injuries (see, Daugherty v City of New York, 137 A.D.2d 441, 444-445). It was at least arguably foreseeable that the cold water would accidentally be turned off and someone would be burned by the hot water. Thus, the issue of proximate cause is a question for the finder of fact (see, Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315).
The jury found her damages to be $127,000, but also found her 30% comparatively negligent. The court's instruction on negligence correctly conveyed the applicable legal principles (see, Daughtery v. City of New York, 137 A.D.2d 441). The concept of proximate cause was aptly conveyed by the instruction that the allegedly defective conditions on the premises had to be a "substantial cause" of plaintiff's injuries. While the court's interrogatory and charge were couched in terms of whether defendants were "responsible for the accident", as opposed to whether they were "negligent", the charge nevertheless adequately conveyed the correct legal principles.
In the case at bar, defendant's lease with the State contains no covenant whereby defendant agreed to provide security measures in the dormitory where plaintiff was attacked or to maintain the premises in a reasonably safe condition (cf., Klein v Actors Directors Lab, 95 A.D.2d 757, 758, lv dismissed 60 N.Y.2d 559). In the absence of a duty imposed by statute, the mere reservation of a right to enter the leased premises to inspect, make repairs or correct dangerous conditions is insufficient to impose liability upon a landlord who has otherwise transferred exclusive possession and control of the premises to the tenant (compare, Silver v Brodsky, 112 A.D.2d 213, and Harris v Smith, 25 A.D.2d 477, with Daughtery v City of New York, 137 A.D.2d 441, 444-445). In sum, we conclude that the duty to provide minimal security measures allegedly breached in this case was owed to plaintiff by the State, as plaintiff's landlord by virtue of its operation, maintenance and control of the dormitory where she resided.
The First Department determined that The City was not an out-of-possession owner when it leased a building to a tenant association under the TIL program, as The City had maintained a right of entry and inspection in the lease. Daughtery v. City of New York, 137 A.D.2d 441, 445 (1st Dept. 1988). Here, like in Daughtery, The City retained and exercised a right to enter and inspect the building.
Accordingly, there is evidence from which a jury could infer that Rudolpu was negligent because during a nine year period he saw the tag on the boiler, observed the lack of a temperature gauge, never tested the water temperature and was experienced enough to be aware of a potential problem of excessive hot water. Daughtery v. New York, 137 A.D.2d 441,444 (1st Dept. 1988) (landlord found to have constructive notice where excessive hot water existed for such long time that knowledge should have been acquired with exercise of reasonable care). Plaintiff's alleged inebriation is itself a question of fact, as she has submitted a medical affidavit, from a doctor experienced in metabolism and treating alcoholics, which opines that an alcoholic's "level of intoxication and impairment cannot be adequately assessed by reliance upon a blood alcohol level."
This evidence of a prior defective condition, shown by continuous records to which Jeffmar Management had access, is enough to demonstrate that defendant did not lack notice of the excessively hot water. See Daughtery v. City of New York, 137 AD2d 441, 444 (1st Dep't 1988). B. The Defective Condition According to the New York City Building Code