Opinion
5673 Index 150806/12
02-08-2018
Debra MILANO, as Administratrix of the Estate of Keith Mastronardi, Deceased, et al., Plaintiffs–Appellants, v. 340 EAST 74 STREET OWNERS CORP., et al., Defendants–Respondents.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for appellants. Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for respondents.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for appellants.
Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for respondents.
Friedman, J.P., Sweeny, Kahn, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered July 13, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Decedent fell to his death through the window of his fifth floor apartment, while intoxicated. It was undisputed that decedent's three children, all under 10 years of age, lived in the apartment, which was not equipped with window guards in violation of New York City Health Code § 131.15(a)(1). Plaintiffs also contend that defendants violated 24 RCNY 12–10(g), mandating window stops on windows with window guards.
Supreme Court properly concluded that defendants had no statutory or common-law duty to decedent to install window guards or stops in the apartment since the window guard regulation does not impose a duty on owners to adults injured by the failure to install the guards (see Rodriguez v. City of New York, 272 A.D.2d 68, 707 N.Y.S.2d 828 [1st Dept. 2000], lv dismissed in part and denied in part 95 N.Y.2d 919, 719 N.Y.S.2d 646, 742 N.E.2d 121 [2000] ; Ramos v. 600 W. 183rd St., 155 A.D.2d 333, 547 N.Y.S.2d 633 [1st Dept. 1989] ). Moreover, since there was no duty to install window guards to protect adults, there was similarly no duty owed to decedent to install window stops.Defendants also had no duty under Multiple Dwelling Law § 78 or the common law to install window guards or stops to protect decedent, since no evidence was presented that the window or ledge was in need of repair (see Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 535, 825 N.Y.S.2d 422, 858 N.E.2d 1127 [2006] ). Even if the window or ledge were viewed as a dangerous condition, the duty to eliminate the danger by installing guards or stops was imposed on the tenant, not the landlord, under the common law (see Ramos at 334–335, 547 N.Y.S.2d 633 ). The court properly concluded that decedent's completion of the Notice to Tenants form mandated by the City concerning the window guard requirement did not constitute a written request for a window guard.
It is further noted that defendants established that it was decedent's own action of leaning out the subject window to smoke while highly intoxicated that was the proximate cause of the accident (see e.g. Rivera v. St. Nicholas 184 Holding, LLC, 135 A.D.3d 496, 22 N.Y.S.3d 832 [1st Dept. 2016] ), and plaintiffs failed to raise a triable issue of fact in this regard.
We have considered plaintiffs' remaining arguments and find them unavailing.