Opinion
35974/02.
Decided November 16, 2005.
Weitz, Kleinick Weitz, NY, NY, for Plaintiff.
Rivkin Radler LLP, Uniondale NY, for Defendant.
This action arises from an April 20, 2002-accident at 100 West 139th Street, New York, New York. Plaintiff Tyrone Duckette, claims that his then 19 months old son fell from a fire escape at Apartment 28B, after climbing through an apartment window. The apartment was occupied by Mr. Duckette's sister, Dotha Duckette, aunt of the injured infant. Defendant Neighborhood Lenox, LLC, is the owner of the building, defendant Janus Partners, LLC manages the building, and defendant Richard Colon, an employee of Janus Partners, LLC, was the building manager.
Defendants move for summary judgment, pursuant to CPLR 3212 (b), to dismiss plaintiffs' complaint. Plaintiffs cross-move to: restore the case to the trial calendar; grant a new date for plaintiffs to file a note of issue; and, to amend the pleadings to reflect that the proper name of the infant plaintiff is "Tyron Duckette," not "Tyrone Duckette, Jr." and the father's correct name is "Tyrone Duckette," not "Tyron Duckette."
Procedural history
This action was commenced against Neighborhood Lenox and Richard Colon in September 2002 by service of a summons and complaint [exhibit A of motion]. Issue was joined by service of an answer in December 2002 [exhibit B of notice of motion]. Thereafter, a supplemental summons and amended complaint were served on or about December 16, 2002 [exhibit C of notice of motion], and an answer was served on or about December 20, 2002 [exhibit D of notice of Motion].
A preliminary conference was conducted on May 23, 2003 [exhibit E of motion].
Thereafter, a further supplemental summons and amended complaint were served [exhibit F of motion] adding Janus Partners LLC as an additional defendant. An answer on behalf of all defendants was served on June 7, 2004 [exhibit G of motion].
Depositions of the child's mother and father were conducted, as well as a deposition on behalf of all defendants. A physical examination of the infant plaintiff has been held. All discovery required by the preliminary conference order has been completed, but plaintiffs have not yet filed a note of issue.
With respect to plaintiffs' cross-motion, it is unopposed by defendants and is granted. The instant case is restored to the calendar. Plaintiffs must file a note of issue by February 17, 2006. The caption of the instant action is amended to reflect the corrected names of the plaintiff infant and plaintiff father as follows:
With respect to defendants' motion for summary judgment, it is denied for the following reasons.
Discussion
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenberg v. Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).
CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v. Dino Artie's Automatic Transmission Co., 168 AD2d 610 (2nd Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979).
When viewing the evidence in the light most favorable to the nonmoving parties, plaintiffs, there are triable issues of fact present. Defendants' predicate their motion upon New York City Health Code § 131.15 (a) which requires, in relevant part, that "the owner, lessee, agent or other person who manages or controls a multiple dwelling" provide window guards in the "windows of each apartment in which a child or children ten (10) years of age and under reside . . . except that this section shall not apply to windows giving access to fire escapes . . ."
Plaintiffs contend that defendants have violated New York City Building Code § 27-127, requiring that "[a]ll buildings and all parts thereof shall be maintained in a safe condition" and New York City Building Code § 27-128, requiring that the building "owner shall be responsible at all times for the safe maintenance of the building and its facilities." In support of this, plaintiffs present an affidavit of the apartment's tenant, Dotha Duckette [exhibit A of cross-motion] in which Ms. Duckette claims that because she had three children under the age of ten, she made several requests prior to the accident to the building's management and its superintendents for protective gates. She claimed that her building officials were unresponsive, but that about one or two weeks after her nephew's accident, "the super installed a safety gate on the fire escape window, and child proof gates on the kitchen and bathroom windows" [exhibit A of cross-motion — paragraph 12].
Plaintiffs also present the affidavit of Robert J. Butler [exhibit B of cross-motion], a former Chief of Department of the Fire Department of the City of New York, who has more than thirty years experience in fire safety and building code enforcement. Chief Butler concludes, in paragraph four of his affidavit, after reviewing all of the pleadings, deposition testimony, photographs, contracts and other discovery material, as well as Dotha Duckette's affidavit, that "I submit the following expert opinion that the subject premises, and more specifically the window giving access to the fire escape, were not maintained in a reasonable safe condition and in accordance with the applicable statutory and regulatory provisions." He further opines, in paragraph 12 of his affidavit, that with defendants' failure to install approved window gates on the subject widow, "the defendants departed from good and accepted fire safety and building maintenance practices," in violation of New York City Building Code § 27-127 and § 27-128, and thus failed to exercise due care in maintaining reasonably safe premises. Defendants' reply papers fail to present any evidence in admissible form to refute Chief Butler's findings.
The mere fact that New York City Health Code § 131.15 exempts the fire escape window in question from having window guards does not absolve defendants of their common law duty to maintain their premises in a reasonable safe condition. Kellman v. 45 Tiemann Associates, Inc., 87 NY2d 871 (1975); Larkin v. Radio City Music Hall Corp., 282 AD2d 405 (lst Dept 2001). In Basso v. Miller, 40 NY2d 233 (1976), then Chief Judge Cooke instructed, at 241, that a property owner, "must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." In Peralta v. Henriquez, 100 NY2d 139, 144 (2003), the unanimous Court observed that "[t]he Basso rule is fact based and grounded in the practical realities of today's life. It does not impose strict liability but rather requires that the landowner act reasonably when considering all the circumstances." See Cupo v. Karfunkel, 1 AD3d 48 (2nd Dept 2003); Luksch v. Blum-Rohl Fishing Corp., 3 AD3d 475 (2nd Dept 2004). Subsequently, in Galindo v. Town of Clarkstown, 2 NY3d 633, 636 (2004), the Court noted that:
It is well settled that a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances. The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff's presence on the property.
The instant case, therefore, has triable issues of fact as to whether or not defendants maintained their premises in a reasonably safe condition pursuant to their common law duty and as required by the New York City Building Code § 27-127 and § 27-128.
Conclusion
Defendants motion for summary judgment, pursuant to CPLR 3212 (b), to dismiss plaintiffs' complaint is denied.
Plaintiffs' cross-motion is granted. The instant case is restored to the calendar. Plaintiffs must file a note of issue by February 17, 2006. The caption of the instant action is amended to reflect the corrected names of the plaintiff infant and plaintiff father.
This constitutes the decision and order of the court.