Opinion
SCB-1248/2019
12-24-2020
Felix FIGUEROA, Claimant, v. 1981 REALTY CORP., Defendant.
Attorney for Claimant: Claimant appeared pro se. Attorney for Defendant: Joshua Goldberg, Esq. Gutman, Mintz, Baker & Sonnenfeldt, LLP 813 Jericho Turnpike New Hyde Park. NY 11040
Attorney for Claimant: Claimant appeared pro se.
Attorney for Defendant: Joshua Goldberg, Esq. Gutman, Mintz, Baker & Sonnenfeldt, LLP 813 Jericho Turnpike New Hyde Park. NY 11040
Bianka Perez, J.
Background
The Claimant commenced this action on June 3, 2019 for $5,000.00 in the Small Claims Court. Claimant seeks to recover damages for personal injuries sustained on March 6, 2017.
The parties appeared for a trial on November 12, 2019. The matter was adjourned to January 28, 2020 for a continued trial to permit claimant to request and compile his medical records. The trial was further adjourned to March 24, 2020 for further medical documentation. Due to the COVID-19 pandemic, the continued trial was adjourned to October 8, 2020 and December 8, 2020. At the close of claimant's case, defendant moved to dismiss the action. Having reserved decision, the Court decides as follows.
Findings of Fact
Claimant, appearing pro se, testified that he has resided at 1181 East Tremont Avenue, Apartment 4A, Bronx, NY 10460 since 1969. On March 6, 2017, claimant testified that while in the bathroom, a portion of the ceiling suddenly collapsed and fell on his head and neck. Claimant testified that two days before the incident, he notified the building superintendent of a leak in the bathroom ceiling. Claimant testified that before the incident, the superintendent shut off the water in the upstairs apartment, but did not fully repair the leak at that time. Claimant further testified that after the ceiling collapse, the landlord threatened to delay repairs in the apartment if claimant pursued legal action.
Claimant testified that immediately after the ceiling collapse, his wife called 911 and he was transported to Montefiore Medical Center for emergency treatment in an ambulance. Claimant testified that he was discharged from the emergency room that same day. Claimant provided the Court with certified medical records, which were entered into evidence without objection or redaction. The certified records from Montefiore show that (1) claimant reported that the bathroom ceiling fell on his head, causing headache and weakness, and (2) a CT scan of claimant's head was conducted and clinically indicated "injury." The certified prehospital care report summary from the Fire Department states that claimant reported "being hit in head by falling ceiling," and that claimant was "bleeding" and exhibited "laceration/swelling to head."
Claimant testified that as a result of the incident, he sustained neck pain and loss of movement in his neck. Claimant stated that following the incident and at the indication of his primary care physician, he received physical therapy at Metropolitan Hospital twice a week for approximately three months. Claimant provided certified physical therapy records to the Court, which were entered into evidence without objection or redaction. The certified physical therapy records state that claimant received physical therapy from April 12, 2017 to July 18, 2017. On April 12, 2017, attending physician Dr. Sumankumar Brahmbatt noted in the records: "saw and examined [claimant] and agree with neck and shoulder pains due to musculoskeletal/cervicalgia s/p ceiling falling on patient 03/2017." Per the records, claimant has a prior medical history of "[p]ain in right shoulder" and "spondylosis without myelopathy or radiculopathy" of the "lumbosacral region."
Claimant further testified that he has no out-of-pocket expenses for his injuries, as his health insurance covered all treatment-related costs. Claimant stated that he seeks $5,000.00 as that was the statutory maximum at the time he commenced the instant action.
Defendant was represented by counsel. Defendant's owner and treasurer, Mr. Celaj, testified that he is familiar with the premises and the day-to-day operations of the building. Mr. Celaj testified that he has owned and worked at the building for over ten years. Per his testimony, Mr. Celaj visits the building five to six times a week to give the superintendent any necessary supplies and conduct visual inspections. Mr. Celaj testified that he did not recall being notified of the ceiling leak. Mr. Celaj indicated that while he knew that the ceiling was eventually repaired, the claimant's tenant file did not contain a work order for the repair and thus he did not know when the repair occurred.
The Court finds the claimant's testimony credible. The Court discredits defendant's testimony that it could not locate the work order for the ceiling repair, nor recall whether claimant properly notified defendant of the leak. "Determination of the credibility of witnesses, as well as the weight to be accorded to the evidence, are primarily questions to be determined by the trier of fact and should not be disturbed when supported by a fair interpretation of the evidence." See , Charles J. Hecht, P.C. v. Clowes , 224 AD2d 312 (1st Dept 1996).
Discussion
Where a ceiling collapse is at issue, the plaintiff has the burden to show actual or constructive notice of a defect prior to the collapse; otherwise, the action must be dismissed. Figueroa v. Goetz , 5 AD3d 164, 165 (1st Dept 2004). Where the plaintiff claims a leak caused the ceiling to collapse, the plaintiff must show that the defendant had prior notice, actual or constructive, of the leak and that the leak was never repaired. Id. As claimant credibly testified that he notified the superintendent of the leak two days before the ceiling collapse, the Court finds that defendant had actual notice of the leak. See, Toussaint v. Ocean Ave. Apartment Associates, LLC , 144 AD3d 664 (2d Dept 2016) (finding that defendant-landlord had actual notice of leak that caused ceiling collapse where complaints were made to building superintendent three days before ceiling collapse).
With respect to the repair, the Court credits claimant's testimony that the superintendent only shut off the water prior to the incident. The Court also credits claimant's testimony that by the time the water had been shut off, his ceiling was already damaged and there were no further repairs done until after the ceiling collapse. Accordingly, claimant established that defendant did not properly repair the leak. See , Toussaint (holding that summary judgment for plaintiff was proper where defendant-landlord had previously repaired the ceiling leak, but never properly remedied it). See also , Gonzalez v. Board of Education of City of New York , 165 AD3d 1065 (2d Dept 2018) (jury verdict for plaintiff was proper where defendant failed to take appropriate and reasonable remedial measures for ceiling leak).
Moreover, with respect to leased premises, it is settled that "[g]enerally, a landlord may be held liable for injury caused by a defective or dangerous condition upon the leased premises if the landlord is under a statutory or contractual duty to maintain the premises in repair and reserves the right to enter for inspection and repair." Guzman v. Haven Plaza Hous. , 69 NY2d 559 (1987). Per Multiple Dwelling Law § 78[1], landlords have a duty to maintain leased premises "in good repair" and "reasonably safe condition." Juarez v. Wavecrest Mgmt. Team Ltd. , 88 NY2d 628, 642 (1996). In merely shutting off the water supply, without further addressing the source of the leak and the water damage to claimant's ceiling before the ceiling collapse, the Court finds that defendant breached its duty to maintain claimant's apartment in good repair. See, Perez v. 2305 University Ave LLC , 2010 NY Slip Op. 33832(U) (Sup Ct, Bronx County 2010) (holding that defendant-landlord is not entitled to summary judgment where it failed to establish that it repaired the leak in plaintiff's ceiling and the source of the leak).
Having established notice and lack of repair, the issue is whether claimant established his injury, and whether the injury was a result of the ceiling collapse. Claimant credibly testified to the neck injury and pain. The medical records support claimant's testimony of the nature and cause of the injury. The emergency room records demonstrate that claimant sustained a head injury, which he reported was caused by the incident. At the first physical therapy appointment, the attending physician stated that claimant's injuries were caused by the ceiling collapse. The testimony and certified medical records are sufficient medical corroboration of the injuries and causation. Dowling v. Dowling , 138 AD2d 345 (2d Dept 1988).
Having established the injury and causation, the Court now turns to damages. At the conclusion of claimant's case, defendant moved to dismiss claimant's action, contending that small claims actions are solely for money damages. Defendant moved this Court to take judicial notice of the New York Unified Court System Small Claims Guide, available online. The Guide states that litigants in small claims "can sue for money" but "cannot sue ... for pain and suffering." Defendant further asserted that claimant failed to establish damages.
However, "contrary to defendant's contention," there is no "statutory or case law prohibition against a recovery for pain and suffering in a small claims case." Lieberman v. Paper Cab Corp. , 2012 NY Slip Op. 52116(U) (App Term, 1st Dept 2012) (citing Alice D. v. William M. , 113 Misc 2d 940 [1982, Saxe, J.]; Hayes v. Mia's Bathhouse for Pets , 44 Misc 3d 142(A) (App Term, 1st Dept 2017) (upholding damages for pain and suffering in small claims action). The Court in a small claims action "shall not be bound by statutory provisions or rules or practice, procedure, pleading or evidence." CCA § 1804. Here, the Court is not bound by the Guide's prohibition on damages for pain and suffering. Instead, the Court is solely tasked with doing "substantial justice between the parties according to the rules of substantive law." CCA § 1804. Accordingly, the Court will not dismiss claimant's action. To dismiss the action would not do substantial justice between the parties according to the rules of substantive law, which ordinarily permits recovery for injuries caused by a ceiling collapse. See, e.g. , Buckham v. 322 Equity LLC , 2020 NY Slip Op. 31350(U) (Sup Ct, New York County 2020).
Even within the informal and simplified procedural rules applied to small claims proceedings, pain and suffering damages are not recoverable unless medically corroborated. Dowling v. Dowling , 138 AD2d 345 (2d Dept 1988) (trial court properly exercised its discretion in limiting the period of suffering to that corroborated by a "certified medical record, in the absence of expert medical testimony with respect thereto"). In the instant matter, claimant has provided medical corroboration for his pain and suffering for the period during which he sought physical therapy, April 12, 2017 to July 18, 2017. The medical records state that during this period, claimant experienced neck pain and loss of movement in the neck. Accordingly, an award of damages for pain and suffering is proper for that period. Id.
With respect to the injuries sustained by claimant, the Court finds that claimant is entitled to $2,500.00 in damages for past pain and suffering. Cf. , Duff v. De Sorbo , 304 AD2d 870 (3d Dept 2003) (affirming $75,000 damages for past pain and suffering for five-year period where plaintiff sustained chronic neck pain due to ceiling collapse); Taylor v. Family Dollar Stores of NY, Inc. , 63 Misc 3d 1230(A) (Civ Ct, Bronx County 2019) (awarding $5,000 damages for pain and suffering due to battery, which caused shoulder injury, cuts to hand, and pain).
Conclusion
Accordingly, it is hereby
ORDERED, that the judgment be entered in favor of the claimant and against the defendant in the amount of $2,500.00 with interest and disbursements as of June 3, 2019.
This constitutes the Decision and Order of the Court.