[*1]
Mora v Cammeby's Realty Corp.
2012 NY Slip Op 50893(U) [35 Misc 3d 1225(A)]
Decided on May 15, 2012
Supreme Court, Kings County
Schmidt, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through May 25, 2012; it will not be published in the printed Official Reports.


Decided on May 15, 2012
Supreme Court, Kings County


Deianera Mora, an infant under the age of fourteen years, by her mother and natural guardian, Gloria Mora, Plaintiffs,

against

Cammeby's Realty Corp., Defendant.




10240/09



Plaintiff Attorney: Bruce Montague & Partners, 212-45 26th Ave., Ste. #7, Bayside, NY 11360

Defendant Attorney: Margaret G. Klein & Associates, 200 Madison Ave., 6th Fl., New York, NY 10016

David I. Schmidt, J.



Defendant Cammeby's Realty Corp. (Cammeby) moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the Complaint in this personal injury action. For the reasons discussed below, the court denies defendant's motion.

FACTS AND PROCEDURAL HISTORY


The infant plaintiff Deianera Mora (the infant) and her mother and natural guardian, Gloria Mora,[FN1] commenced this action on or about April 28, 2009 to recover for injuries sustained by the infant on October 23, 2008. The alleged incident occurred in apartment unit A2 within the building located at 3601 Kings Highway in Brooklyn, New York, which was being shown to the infant's grandmother, Nelly Sibana (Sibana), for the purpose of renting it. Cammeby has been the owner of the subject building since it purchased it in 1979. As Sibana, the infant's father, Wilson Mora, and the infant entered the vacant, unoccupied apartment, Wilson Mora was holding his daughter's hand. When Wilson Mora entered the bedroom with the superintendent, the infant released her father's hand and ran to an uncovered heat or steam riser pipe in the corner of the apartment, which she grabbed with both hands. According to Wilson Mora, the infant then [*2]screamed and wanted to let go of the pipe, but could not because the pipe had recently been painted and the sticky paint acted as glue, binding the infant's hands to the hot pipe. As a result, the infant suffered first and second degree burns on her hands and another burn on her face. The infant was seventeen months old at the time of the accident.

THE PARTIES' CONTENTIONS


Cammeby moves for summary judgment, arguing that it had no duty to insulate or regulate the heat riser pipes pursuant to Administrative Code of the City of New York (Admin. Code) § 27-809 because the subject building was constructed over forty years prior to the enactment of this statute in 1968, and the exceptions contained in Sections 27-115 through 27-118 do not apply to this building. In support of its motion, defendant submits the affidavits of Mitchell Hill, an employee and registered agent of Cammeby, and expert witness Stanley H. Fein. Cammeby further argues that the infant's action of hugging the heat riser pipe was not a foreseeable risk that was proximately caused by the defendant's alleged failure to insulate the pipe in the apartment. Defendant also avers that no issues of fact exist as to whether defendant had actual or constructive notice of any dangerous condition in violation of its common-law duty to maintain the premises in safe condition.

In opposition, plaintiff argues that defendant did not satisfy a prima facie case for summary judgment because (1) defendant did not establish that it was not statutorily required to cover the heat riser in the building because the affidavit of Mitchell Hill contained an unsupported claim regarding the property's value at the time of the accident and the building therefore does not fit within the exception; (2) defendant fails to show that it properly maintained the heat riser pursuant to common-law principles; (3) defendant's expert witness did not cite any data to support his conclusion that the riser was safe, he was not qualified to opine on the matters herein, and his credibility was suspect, given contradictory testimony in similar prior cases; and (4) defendant did not establish through evidence that they did not create the dangerous condition of the uncovered pipe, which was sticky with wet paint, and also did not warn others of the dangerous condition. Additionally, plaintiff indicates that she pleaded violations of Multiple Dwelling Law § 78 (1) in the Supplemental Bill of Particulars, which defendant did not address or contest in moving for summary judgment. Plaintiff also challenges defendant's argument that the infant's conduct of hugging the heat pipe was unforeseeable by distinguishing it from case law cited by defendant and arguing that it is indeed foreseeable that an infant would briefly touch the exposed pipe. Finally, plaintiff asserts that she has raised questions of material fact which preclude summary judgment regarding whether defendant was on notice of an ongoing dangerous condition and whether defendant properly maintained the heat pipe according to general custom.

In reply, defendant contends that the accident was unforeseeable, stressing that the apartment where the injury occurred had not yet been leased out and furniture had not yet been placed in front of the heat pipe in the unoccupied apartment. It also distinguishes the instant scenario from facts in the cases cited because the tenants therein were residents of those apartments. Defendant claims that the sole proximate cause of the infant's injury was her unforeseeable act of breaking free from her father's hand, running to the heat riser, and hugging it while freshly painted and sticky, as well as when the heat was on. Next, defendant asserts that New York courts have long rejected claims that landlords have a common-law duty to provide [*3]covers for radiators. Defendant also attacks the probative value of plaintiff's expert witness' affidavit for lack of relevant experience and attempts to bolster the competence and credibility of its own expert witness by citing the transcript and other cases submitted by plaintiff in which defendant's expert witness also testified. Furthermore, defendant argues that the issue of notice is irrelevant because the uncovered heat riser was not an unreasonably dangerous condition. It similarly avers that it was not required to warn or protect people from the heat pipe because it was an open and obvious condition. Last, defendant avers that plaintiff fails to raise any triable issue of fact regarding the value of the building because defendant's reliance on the affidavit of Mitchell Hill, whose duties included tracking expenditures for the building since its purchase in 1979, was proper. It also maintains that plaintiff merely speculates that repairs in excess of sixty percent of the building's value were performed before 1979, and that plaintiff did not conduct an inspection of the building during the discovery period to ascertain such information.

DISCUSSION


The moving party on a motion for summary judgment has the burden of demonstrating "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 Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The court concludes that defendant Cammeby is not entitled to summary judgment as a matter of law. First, based on the record, triable questions of fact remain regarding whether Cammeby was obligated to maintain the building in accordance with the provisions set forth in Admin. Code § 27-809, specifically, the requirement that pipes carrying steam or hot water at temperatures exceeding one hundred sixty-five degrees Fahrenheit be insulated. Section 27-809 applies to buildings erected after the statute's enactment in 1968, and to those falling under the exceptions to the "grandfathering rules" in Sections 27-115 through 27-118, which generally provide that buildings must be made to comply with the requirements of the code, either in all or in part, depending on the cost of making alterations or renovations in any twelve-month period when they total thirty percent or more of the value of the building. The court emphasizes that, on summary judgment, the burden is on defendant to lay bare its proof demonstrating that it is excepted from any obligations under the statute (see Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 140 [2000]). Relying on the Mitchell Hill's affidavit, defendant avers that the subject building was built no later than 1931; that the building has a value of $5,000,000; and that no alterations costing over thirty percent or more of the value of the building had been performed in any twelve-month period. Although defendant may have demonstrated that the subject building was constructed well before the relevant statute was enacted, questions of fact remain, including whether any qualifying alterations were performed to the subject building prior to its purchase by defendant in 1979. Thus, the court cannot determine, as a matter of law, that defendant was not statutorily required to insulate the heat riser by reason that no alternations or renovations costing at least thirty percent of the building's purported $5,000,000 value were ever performed on the subject building.

Second, the court finds that defendant has not established that it was not negligent in [*4]allowing an unsafe heat riser pipe to exist on the premises. A landowner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition "in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding risk" (Solomon v Prainito, 52 AD3d 803, 804-805 [2010] [internal citations and quotations omitted]). Citing Rivera v Nelson Realty, LLC (7 NY3d 530 [2006]), which held that neither MDL § 78 (1) nor the common law imposes a duty upon landlords to install radiator covers, defendant goes to great lengths to analogize risers to radiators so as to argue that it had no common-law duty to insulate heat risers. As guidance, insofar as the legislature has enacted Admin. Code 27-809, the court must consider the fact that the legislature makes a distinction between radiators, which are not regulated, and heat riser pipes, which are. Ultimately, the court is not persuaded that defendant's duty to maintain the premises in safe condition does not include a duty to protect prospective tenants from the heat-related hazards of the heat riser pipe.

Defendant then argues that the infant's injury was not a foreseeable risk that was proximately caused as a result of its alleged failure to insulate the heat riser pipe in the apartment. Where the negligence complained of does not cause the occurrence of the accident from which the injuries flow, and an intervening act occurs which is not foreseeable in the normal course of events, proximate cause is lacking as a matter of law (see Sanchez v Biordi, 259 AD2d 434, 434 [1999]). The court acknowledges precedent granting summary judgment to landlords where it was not foreseeable that the plaintiff tenants would sustain burn injuries after fainting or losing consciousness and leaning against an exposed heat riser pipe for extended periods of time (see e.g. Ferguson v New York Hous. Auth., 77 AD3d 706, 707 [2010]; Sanchez, 259 AD2d at 434; cf. Delaney v First Concourse Mgt. Co., 275 AD2d 233 [2000]; see also Issacs v West 34th Apts. Corp., 36 AD3d 414 [2007]). However, the court finds that Cammeby need not have foreseen that the infant would have broken free from her father's grasp, run to the heat riser, and "hugged" it, while the fresh paint on the pipe was still sticky (see Delaney, 275 AD2d at 233).

In Derdiarian v Felix Contr. Corp. (51 NY2d 308 [1980]), the Court of Appeals examined whether a superseding cause or other factors intervened to break the nexus between a contractor's negligence and plaintiff's injury. Derdiarian involved a plaintiff who was injured when defendant driver's vehicle crashed into a construction site, spilling hot oil on the plaintiff (id.). Although the evidence demonstrated that the accident occurred because the defendant driver suffered an epileptic seizure causing him to control of the car, the court found that the jury nevertheless could have found that the defendant contractor negligently failed to secure the construction site in a manner sufficient to avoid the accident (Id. at 316). The court further found that "the precise manner of the [accident] need not be anticipated" and that the defendant contractor was not insulated from liability as a matter of law "where the general risk and character of injuries are foreseeable" because a "prime hazard of such dereliction is the possibility that a driver will negligently enter the work site [for whatever reason]" (Id. at 316-317). Similarly, "[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent" (Id. at 316).

Here, bearing Derdiarian in mind, the court finds that "a jury could conclude that the foreseeable, normal and natural result' of the risk created by defendant[ ] was the injury of a [*5]tenant from contact with the unprotected steam pipe" (Delaney, 275 AD2d at 233, quoting Derdiarian, 51 NY2d at 316). As the "precise manner of the event" (Id. at 315, citing Restatement [Second] of Torts § 435, subd 2) need not be foreseeable, the defendant owner need not anticipate that a child might act unpredictably and "hug" a hot steam riser, as Cammeby suggests. Rather, "[i]n view of the foreseeability of accidental contact with the steam pipe" (Delaney, 275 AD2d at 233-234), it cannot be said, as a matter of law, that the infant's conduct constituted an extraordinary and intervening act which made the risk of injury unforeseeable (see Gurmendi v Perry St. Dev. Corp., 93 AD3d 635 [2012], citing Derdiarian, 51 NY2d at 315-316). Defendant has not demonstrated that the alleged dangerous condition was not a substantial cause of the events which produced the injury (see Piazza v Regeis Care Ctr., LLC, 47 AD3d 551, 554 [2008]), and plaintiff should be allowed to show that [the infant's] injuries were the foreseeable consequence of defendant['s] conduct" (Delaney, 275 AD2d at 233-234). Thus, the court finds that factual issues regarding whether defendant breached its common-law duty to maintain the premises in a reasonably safe condition and whether such breach proximately caused the infant's accident must be determined by a jury.

In summary, defendant is not entitled to summary judgment dismissing this action, given the remaining triable issues of material fact, including, but not limited to, whether the subject building should have been made to comply with Admin. Code § 27-809, pursuant to one of the exceptions to the "grandfathering rules" in Sections 27-115 through 27-118, and whether defendant negligently breached its duty to maintain the premises in a reasonably safe condition by failing to insulate or cover the heat riser pipes in the subject apartment. The court has considered the parties' remaining contentions and deems them meritless.

Accordingly, it is

ORDERED that defendant's motion for summary judgment is denied.

The foregoing constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C.

Footnotes


Footnote 1: The court hereinafter refers to plaintiffs in the singular for ease of reference.