Opinion
2012-12-6
Jerry EADERESTO, Plaintiff–Respondent, v. 22 LEROY OWNERS CORP., et al., Defendants–Appellants.
Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for respondent.
Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for respondent.
TOM, J.P., MAZZARELLI, MOSKOWITZ, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 21, 2012, which denied defendants' motion to vacate a self-executing order of preclusion against them, and for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of vacating the preclusion order, and otherwise affirmed, without costs.
The motion court erred in denying that part of defendants' motion to vacate the self-executing preclusion order ( see generally Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ). The record shows that defendants provided a reasonable excuse for their default and subsequent 45–day delay in complying with the order, as the handling attorney in a two-partner firm had been stricken with a serious illness. Defendants also demonstrated a meritorious defense to the action by presenting evidence that plaintiff remained in the shower in defendants' building despite knowing that the water was too hot.
However, the court correctly found that triable issues of fact exist as to whether defendants negligently failed to maintain the mixer on the building's boiler in a reasonably safe condition, and had notice of excessively hot water in the premises ( see Simmons v. Sacchetti, 15 N.Y.3d 797, 908 N.Y.S.2d 144, 934 N.E.2d 877 [2010];Sawchuk v. 335 Realty 58 Assoc., 44 A.D.3d 532, 843 N.Y.S.2d 616 [1st Dept.2007] ). There is also a triable issue as to whether plaintiff's conduct of remaining in the shower to shave, with the water pointed away, when he knew the water to be overly hot, and becoming burned when he fainted from an unrelated illness, constituted a superseding cause of his injuries ( see Simmons at 798, 908 N.Y.S.2d 144, 934 N.E.2d 877;Sawchuk at 532, 843 N.Y.S.2d 616).