Opinion
No. 200 SSM 30.
Decided August 31, 2010.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered August 25, 2009. The Appellate Division (1) reversed, on the law, orders of the Supreme Court, Bronx County (Dominic R. Massaro, J.), which had denied motions by defendants building owner and management company, and by defendant boiler service contractor, for summary judgment dismissing the complaint and all cross claims against them, (2) granted the motions, and (3) dismissed the complaint and all cross claims against those defendants.
This action arose from an accident in which plaintiff, then 17 months old, was injured when she fell into a bathtub containing scalding hot water. The building complex was owned by defendant Vito Sacchetti, and managed by his son, an employee of defendant TMS Management Company. Defendant Ambassador Fuel and Oil Burner Corp. had an oral contract with Sacchetti, who claimed that Ambassador's obligations included maintaining and repairing the building's hot water system. Ambassador asserted that its only responsibilities were to supply fuel oil and conduct annual inspections of the boiler sufficient to satisfy New York City Building Department requirements. The complaint alleged that plaintiffs injuries were caused by defendants' negligence in failing to properly maintain the water system in the building.
The Appellate Division, noting that other tenants of the building testified that they previously had complained about the water temperature, stated that it was undisputed that the accident occurred when the unattended child was scalded after getting or falling into the bathtub after her brother had turned on hot water only, and while her mother was in another room.
Simmons v Sacchetti, 65 AD3d 495, modified.
Law Offices of Arnold E. DiJoseph, P.C., New York City ( Arnold E. DiJoseph, III, of counsel), for appellants.
Law Office of Max W. Gershweir, New York City ( Max W. Gershweir of counsel), for Vito Sacchetti and another, respondents.
Molod Spitz DeSantis, P.C., New York City ( Marcy Sonneborn of counsel), for Ambassador Fuel and Oil Burner Corp., respondent.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, White Plains ( Debra A. Adler of counsel), for FB Fuel Oil Co., Inc., respondent.
Stuart W. Lawrence, New York City, for Met Council, Inc. and another, amici curiae.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAPFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
MEMORANDUM .
The order of the Appellate Division should be modified, without costs, by denying the motion of defendants Vito Sacchetti and TMS Management Company for summary judgment in the entirety and the motion of defendant Ambassador Fuel and Oil Burner Corp. insofar as it sought to dismiss the cross claims against it and, as so modified, affirmed.
Triable issues of fact exist as to whether defendants Sacchetti and TMS negligently failed to maintain the apartment building's boiler and domestic hot water system in a reasonably safe condition and whether the negligence of those defendants proximately caused the infant plaintiffs injuries. Issues of fact also exist as to whether the conduct of the infant plaintiffs mother and brother constituted a superseding cause of her injuries. However, the record establishes as a matter of law that defendant Ambassador did not violate any duty owed to plaintiffs.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, etc.