Opinion
2014-05-28
Joshua TRADER, etc., et al., respondents, v. NEW YORK CITY HOUSING AUTHORITY, appellant.
Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm and Linda M. Brown of counsel), for appellant. Drabkin & Margulies, New York, N.Y. (Caitlin Robin of counsel), for respondents.
Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm and Linda M. Brown of counsel), for appellant. Drabkin & Margulies, New York, N.Y. (Caitlin Robin of counsel), for respondents.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Rivera, J.), dated November 13, 2012, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
On December 7, 2009, the infant plaintiff, Joshua Trader, allegedly was burned when his leg made contact with a steam riser pipe in the kitchen of his family's apartment. At the time of the accident, the apartment building was owned and maintained by the defendant. In support of its motion for summary judgment dismissing the complaint, the defendant established its prima facie entitlement to judgment as a matter of law based upon, inter alia, proof that Administrative Code of the City of New York § 27–809, requiring insulation of accessible piping exceeding 165 degrees Fahrenheit, did not apply to the subject building because it was constructed before the effective date of that provision ( see Palacios v. City of New York, 80 A.D.3d 588, 589, 915 N.Y.S.2d 595;Isaacs v. West 34th Apts. Corp., 36 A.D.3d 414, 416, 828 N.Y.S.2d 308;Bruno v. New York City Hous. Auth., 21 A.D.3d 760, 761, 800 N.Y.S.2d 705; Sanchez v. Biordi, 259 A.D.2d 434, 434, 687 N.Y.S.2d 338), and proof that the pipe was maintained in accordance with acceptable standards ( see Palacios v. City of New York, 80 A.D.3d at 589, 915 N.Y.S.2d 595;Bruno v. New York City Hous. Auth., 21 A.D.3d at 761, 800 N.Y.S.2d 705).
In opposition to the defendant's prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether any of the exceptions to the “grandfathering” rule of Administrative Code of the City of New York § 27–809 applied ( see Powers v. 31 E 31 LLC, 105 A.D.3d 657, 965 N.Y.S.2d 7,lv. granted21 N.Y.3d 863, 2013 WL 4516324;Sanchez v. Biordi, 259 A.D.2d 434, 687 N.Y.S.2d 338). Moreover, the plaintiffs failed to raise a triable issue of fact as to whether the defendant had actual or constructive notice of the alleged dangerous condition, violating its common-law duty to maintain a safe premises ( see Palacios v. City of New York, 80 A.D.3d at 589, 915 N.Y.S.2d 595;Ferguson v. New York City Hous. Auth., 77 A.D.3d 706, 910 N.Y.S.2d 444;Lam v. Neptune Assoc., 203 A.D.2d 334, 335, 610 N.Y.S.2d 538).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.