The following papers, numbered 1-6 were considered on this motion for summary judgment:

PAPERSNUMBERED

Notice of Motion/Order to Show Cause, — Affidavits — Exhibits1, 2

Answering Affidavits — Exhibits ________________________________3

Replying Affidavits4, 5, 6

Cross-Motion:[ ] Yes[ X ] No

Upon the foregoing papers, it is ordered that this motion for summary judgment is denied for the reasons set forth below.

Plaintiff brings this action to recover damages for personal injuries she sustained while trapped in an apartment fire on March 22, 2008 (the Incident). At the time of the fire, plaintiff was working in defendant Beverly Thompson's apartment, as a home health attendant, assigned to defendant Thompson's mother, Adeline Lunnon. Defendant Thompson's apartment was and still is located at 1023 FDR Drive, Apartment 3A, New York, New York, in the NYCHA project known as Jacob Riis (the Subject Apartment). Plaintiff had been working with Ms. Lunnon from 8:00am to 8:00pm, Friday through Sunday, for approximately one year prior to the Incident. On March 22, 2008, a fire broke out in the Subject Apartment and plaintiff and Ms. Lunnon were trapped in Ms. Lunnon's bedroom. Plaintiff, as well as Ms. Lunnon, were subsequently rescued from the fire by the New York City Fire Department through the bedroom window. Plaintiff sustained second degree burns to her hands and back, as well as smoke inhalation.

Plaintiff initially commenced this negligence action against the City of New York, New York City Housing Authority (NYCHA), and New York City Department of Housing Preservation and Development (HPD). A prior motion for summary judgment was granted by Honorable Karen S. Smith in a decision dated May 15, 2009 wherein plaintiff's complaint was dismissed as against defendants City of New York as well as HPD. Thereafter, plaintiff amended her complaint to add tenant of record, Beverly Thompson, as co-defendant. In a decision dated May 17, 2010, this court granted plaintiff's motion for a default judgment against defendant Beverly Thompson. The only remaining defendant is NYCHA.

Defendant NYCHA has filed the within motion for summary judgment, seeking dismissal of plaintiff's complaint, asserting that it did not create and had no notice, actual or constructive, of the purported defective and dangerous condition allegedly resulting in or contributing to plaintiff's injury. Specifically, defendant NYCHA argues that it had no notice of a defective smoke detector in the Subject Apartment.

In a negligence action against a property owner, a plaintiff must show that the property owner was on notice of a dangerous condition which allegedly resulted in the claimed injury. Plaintiff can do so by demonstrating "that an ongoing and recurring dangerous condition existed [*2]in the area of the accident which was routinely left unaddressed by the' [property owner]". Talavera v. New York City Transit Auth., 41 AD3d 135, 136 (1st Dep't 2007) (internal citations omitted).

Here, plaintiff's Amended Verified Complaint states that plaintiffs injuries were a direct result of the lack of working smoke detectors, smoke alarms, sprinkler system, fire escape, fire detectors and/or fireguards, flame retardant materials in the Subject Apartment owned, operated, maintained, controlled, supervised, inspected and repaired by defendant NYCHA. Plaintiff argues that, in the approximately one year she worked in the Subject Apartment, there never was a smoke detector. Additionally, plaintiff's Amended Verified Complaint alleges that locked windows in the Subject Apartment prevented egress.

Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). The failure to make such a showing requires denial of the motion. Id, 64 NY2d at 853 (1985). Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. Zuckerman v City of New York, 49 NY2d 557, 560 (1980). In deciding such a motion, the court's role is "issue-finding, rather than issue-determination." Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) (internal quotations omitted). As such, summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence. Ugarriza v. Schmieder, 46 NY2d 471, 475-476 (1979).

Here, the motion for summary judgment is denied as a triable issue of fact exists as to defendant's alleged negligence. The Administrative Code of the City of New York § 27-2045(a) states that "[i]t shall be the duty of the owner of a class A multiple dwelling which is required to be equipped with smoke detecting devices...to: (1) provide and install one or more approved and operational smoke detecting devices in each dwelling unit." Furthermore, the Administrative Code of the City of New York § 27-2045(b) goes on to state that "it shall be the sole duty of the occupant of each dwelling unit in a class A multiple dwelling in which a smoke detecting device has been provided and installed by the owner...to: (1) keep and maintain such device in good repair; and (2) replace any and all devices which are either stolen, removed, missing or rendered inoperable during the occupancy of such dwelling unit." In support of the within motion, defendant submitted a NYCHA Work Request dated February 4, 2008, an affidavit of NYCHA superintendent, German Arzu, and deposition transcripts of plaintiff and of NYCHA maintenance worker, Lincoln Notice. Defendant argues that NYCHA is merely responsible for providing and installing a working smoke detector, the maintenance and upkeep of said smoke detector falls solely on the occupant. Defendant relies on the deposition transcript of Mr. Notice and the NYCHA Work Request to demonstrate that a working smoke detector was present in the Subject Apartment approximately one month prior to the Incident. Defendant further states that NYCHA has no additional duty or obligation as to the smoke detector because a working smoke detector had been provided as required by law.

Plaintiff argues and proffered evidence that no smoke detector existed in the Subject [*3]Apartment and that one of the windows in the bedroom was defective. Plaintiff relies on the deposition transcripts of herself and of James N. Costello, first responding battalion chief at the time of the Incident. Additionally, plaintiff submits the Fire Department New York Incident Report dated May 11, 2008 along with several work tickets issued by NYCHA for work done in the Subject Apartment between October 26, 2006 and March 11, 2008. Plaintiff testified that she had never seen a smoke detector in the Subject Apartment. Mr. Costello also testified that he did not see a smoke detector in the Subject Apartment on the day of the Incident. As such, he marked "N - None Present" in his report next to smoke detector.

"In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility". Garcia v. J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep't 1992), citing Assaf v. Ropog Cab Corp., 153 AD2d 520, 521 (1st Dept 1989). Drawing all reasonable inferences in favor of plaintiff, defendant is not entitled to summary judgment as there is conflicting evidence as to the existence of a working smoke detector in the subject apartment at the time of the Incident thus raising a triable issue of fact as to defendant's alleged negligence.

As such, it is

ORDERED that defendant's motion to for summary judgment is denied; it is further

ORDERED that within 30 days of entry, defendant shall serve a copy of this decision/order upon plaintiff with notice of entry.

This constitutes the decision/order of the Court.

Dated:May 23, 2011

DORIS LING-COHAN, J.S.C.