Flores v. Langsam Property Serv. Corp.

9 Citing cases

  1. McIntyre v. Bradford White Corp.

    222 A.D.3d 1077 (N.Y. App. Div. 2023)   Cited 1 times

    Here, defendants’ expert explained that a visual inspection of the mixing valve did not reveal any scale buildup – an opinion that plaintiff's experts did not refute and confirmed by a photograph of the mixing valve included in the record. That the mixing valve's instruction manual warned of the potential for scale accumulation under hard water conditions, which could potentially affect its operation, "established, at best, a ‘general awareness’ " by defendants that such possibility existed, "but such information is insufficient as a matter of law to raise a triable issue of fact regarding ... constructive notice" ( Faville v. County of Albany, 163 A.D.3d 1297, 1299, 82 N.Y.S.3d 208 [3d Dept. 2018] ; seeFlores v. Langsam Prop. Servs. Corp., 63 A.D.3d 502, 503, 881 N.Y.S.2d 405 [1st Dept. 2009], affd 13 N.Y.3d 811, 890 N.Y.S.2d 432, 918 N.E.2d 944 [2009] ; Hayes v. Riverbend Hous. Co., Inc., 40 A.D.3d 500, 500, 836 N.Y.S.2d 589 [1st Dept. 2007], lv denied 9 N.Y.3d 809, 844 N.Y.S.2d 784, 876 N.E.2d 513 [2007] ; Chorostecka v. Kaczor, 6 A.D.3d 643, 644, 775 N.Y.S.2d 548 [2d Dept. 2004] ).

  2. Floyd v. 1710 Realty, LLC

    145 A.D.3d 961 (N.Y. App. Div. 2016)   Cited 2 times

    He informed the plaintiff that the "threads" on the knob were "stripped" and would not stay tight. From this testimony, the jury had a permissible basis to conclude that the defendants had notice of the dangerous condition that allegedly caused the plaintiff's accident (see generally Stewart v. Heralall, 116 A.D.3d 760, 761, 984 N.Y.S.2d 81 ; Urman v. S & S, LLC, 85 A.D.3d 897, 898, 925 N.Y.S.2d 186 ; cf. Flores v. Langsam Prop. Servs. Corp., 63 A.D.3d 502, 881 N.Y.S.2d 405, affd. 13 N.Y.3d 811, 890 N.Y.S.2d 432, 918 N.E.2d 944 ; Allen v. Wyandach Homes & Prop. Dev. Corp., 298 A.D.2d 474, 476, 748 N.Y.S.2d 401 ). Therefore, the court properly denied the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case on the issue of liability (see Treminio v. Argueta, 49 A.D.3d at 863, 854 N.Y.S.2d 212 ).

  3. Frassinelli v. 120 E. 73rd St. Corp.

    136 A.D.3d 476 (N.Y. App. Div. 2016)

    Ocram established entitlement to judgment as a matter of law, in this action where plaintiff Marzia Frassinelli alleges that she was injured when she was scalded by water while showering. Ocram submitted evidence showing that the boiler system in the building was regularly inspected, and there was no prior notice of fluctuating water temperatures (see Flores v. Langsam Prop. Servs. Corp., 63 A.D.3d 502, 881 N.Y.S.2d 405 1st Dept.2009, affd. 13 N.Y.3d 811, 890 N.Y.S.2d 432, 918 N.E.2d 944 2009 ). In opposition, plaintiffs failed to raise a triable issue of fact.

  4. Gonzalez v. American Steel

    76 A.D.3d 669 (N.Y. App. Div. 2010)

    As owner and lessor of the trailer, American Steel owed a duty to warn the plaintiff of "known defects that are not obvious or readily discernible" ( Ruggiero v Braun Sons, 141 AD2d 528, 529, citing Sukljian v Ross Son Co., 69 NY2d 89; see Burns v Haines Equip., 284 AD2d 922). Here, the deposition testimony of American Steel's foreman demonstrated, prima facie, that it neither created nor had actual or constructive notice of the allegedly dangerous and defective condition of the landing gear crank ( see e.g. Flores v Langsam Prop. Servs. Corp., 63 AD3d 502, affd 13 NY3d 811). Moreover, in light of the plaintiffs testimony at his deposition that he was already aware of the specific hazards involved in operating the landing gear crank, American Steel had no duty to warn with respect to the general operation of the crank ( see Warlikowski v Burger King Corp., 9 AD3d 360; Lonigro v TDC Elecs., 215 AD2d 534, 535-536). In opposition to American Steel's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact ( see generally Alvarez v Prospect Hosp., 68 NY2d 320). Accordingly, American Steel's motion for summary judgment dismissing the complaint should have been granted, and the judgment appealed from must be reversed.

  5. Severin v. T Burger, LLC

    2014 N.Y. Slip Op. 30219 (N.Y. Sup. Ct. 2014)

    The terms of the lease agreement demonstrate that Vitus was an out-of-possession landlord, which had relinquished all control over the subject premises on the day of the plaintiff's accident (see Stein v Harriet Mgt., LLC, 51 AD3d 1007, 859 NYS2d 243 [2d Dept 2008]). In addition, Vitus has shown that it neither created nor had actual or constructive notice of the allegedly defective condition on the premises (see Flores v Langsam Prop. Servs. Corp., 13 NY3d 811, 890 NYS2d 432 [2009]; Mokszki v Pratt, 13 AD3d 709, 786 NYS2d 222 [3d Dept 2004]). In opposition, plaintiff's and T Burger failed to raise a triable issue of fact as to whether Vitus was under a contractual duty to repair or maintain the alleged defect on the subject premises or whether the plaintiff's injuries were proximately caused by a defect which constituted a specific statutory violation sufficient to impose liability upon Vitus (see Sanchez v Barnes & Noble, Inc., 59 AD3d 698, 874 NYS2d 528 [2d Dept 2009]).

  6. Duff v. 646 Tenth Ave., LLC

    2013 N.Y. Slip Op. 31717 (N.Y. Sup. Ct. 2013)

    Other decisions with similar holdings include, among others, Flores v Langsam Prop. Servs. Corp. (63 AD3d 502 [1st Dept] [Court dismissed action against building owner by plaintiff allegedly burned by a burst of scalding water emanating from plaintiff's showerhead after it was turned off, because the plaintiff failed to rebut defendants' prima facie showing that they had no notice of the defective condition or that they had no duty to inspect for a spontaneous occurrence], affd 13 NY3d 811 [2009]) and Metling vPunia & Marx (303 AD2d 386, 387-388 [2d Dept 2003] [building owner not liable to plaintiff tenant, who allegedly slipped and fell on water seeping from a toilet that had been removed from an apartment because owner exercised no control over the licensed plumbing concern/independent contractor that caused the condition nor did the owner interfere with or assumed control over the work]). The rationale is that the employer of an independent contractor has no right to control the manner in which the contractor's work is to be done and that it is, therefore, more sensible to place the risk of loss on the contractor (Metling v Punia & Marx, 303 AD2d at 387-388).

  7. Drake v. 107-145 West 135th St. Assocs.

    2012 N.Y. Slip Op. 30745 (N.Y. Sup. Ct. 2012)

    To raise an issue of fact, of actual or constructive notice, there must, be evidence that, moving defendants knew or should have known of the particular condition that caused the injury, and a general awareness of a dangerous condition is insufficient:. Floras v Lanqsam Property Services Corp., 63 AD3d 502 (1ST Dept), aff'd 13 NY3d 811 (2009); Piacquadio v Recine Realty Corp., 84 NY2d 967 (199A); Gordon, supra. However, even though the moving defendants have established on this record that they neither created, nor had actual or constructive knowledge of the defective condition which caused plaintiff's injury, they may still be held liable to plaint Iff under- the doctrine of res ipsa loquitur.

  8. Glover v. Jack in the Box, Inc.

    2010 N.Y. Slip Op. 32924 (N.Y. Sup. Ct. 2010)

    Plaintiff's injury was the first accident involving the disposable aluminum trays that Defendants are aware of. The circumstance of this case mirrors that of Flores v. Langsam Prop. Servs. Corp., 890 N.Y.S.2d 432 (2009). In Flores, the plaintiff was injured by scolding-hot water that sprayed out of her showerhead, after she turned off the water.

  9. SCHACHNOW v. CENTRAL PARK BOATHOUSE, LLC

    2010 N.Y. Slip Op. 50403 (N.Y. Sup. Ct. 2010)

    According to the infant plaintiff, she independently chose the bicycle, and apparently noticed no defect until she had been riding for at least 15 minutes, thereby raising an inference that the defect was neither open nor apparent. (See Flores v LangsamProp. Svces. Corp. , 63 AD3d 502 [1st Dept 2009], affd 13 NY3d 811 [shower suddenly and without warning sprayed plaintiff with scalding water, which had never happened before]). Thus, City and Parks did not actually or constructively notice any defect.