Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered October 25, 2007. The order granted plaintiff's motion for partial summary judgment on the issue of liability and set the matter down for trial on the issue of damages.

Order reversed without costs and plaintiff's motion for partial summary judgment denied.

Plaintiff commenced this action to recover for damage to her cooperative apartment and personal property. It is undisputed that a pipe connected to the toilet in defendant's cooperative apartment leaked and water flooded plaintiff's premises located directly below defendant's premises. Plaintiff moved for partial summary judgment on the issue of liability. The Civil Court granted plaintiff's motion and set the matter down for a trial on damages. The court concluded that defendant was obligated to perform all duties imposed upon him pursuant to the proprietary lease and that defendant had failed to establish that the cooperative corporation was negligent.

We find, contrary to the determination of the Civil Court, that plaintiff failed to shift the burden of proof to defendant. Plaintiff's moving papers did not establish that defendant failed to exercise reasonable care in maintaining his premises. Furthermore, plaintiff did not demonstrate that defendant had actual or constructive notice of a defective condition involving this particular leak (see Griffin v 19-20 Indus. City Assoc. LLC, 37 AD3d 412, 413 [2007]). Accordingly, the order granting plaintiff's motion for partial summary judgment is reversed and plaintiff's motion denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: June 08, 2009