Opinion
7035/07.
Decided August 25, 2009.
Plaintiff was represented by Stuart L. Kitchner, Esq. of Edelman, Krasin Jaye, Esqs.
Defendant was represented by Alina Bushneva, Esq. of Smith Mazure Director Wilkins Young Yagerman, P.C.
On September 4, 2006, plaintiff Nelson Duran was about to enter the front door of an apartment building owned by defendant The Bushwick House, LLC, when he was struck on his head by a window guard that had fallen from an apartment window on the sixth floor. With this motion, Defendant seeks an order, pursuant to CPLR 3212, dismissing Plaintiff's Verified Complaint, which seeks damages for injuries allegedly suffered as a result of Defendant's negligence.
In support of its motion, Defendant submits the transcript of Plaintiff's examination before trial; the transcript of the examination before trial of William Rivera, Defendant's superintendent at the building, as well as his Affidavit; and the transcript of Delmira or Delmara Baez, the tenant of the sixth-floor apartment from which the window guard fell, as well as her Affidavit. (The deposition transcript shows the witness's name as "Delmira," whereas the Affidavit shows her name as "Delmara," a discrepancy that Defendant fails to note and, therefore, fails to correct or explain.)
The Court notes, in the first instance, that none of the deposition transcripts submitted by Defendant is signed by the witness, nor is it shown that the transcript was submitted to the witness for review and signature pursuant to CPLR 3116 (a). The transcripts, therefore, are not admissible evidence available to Defendant to make its prima facie showing on this motion. ( See Martinez v 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901, 902 [2d Dept 2008].) Since, however, the transcript of plaintiff Duran is certified by the reporter, Defendant may use Plaintiff's statements at the deposition as admissions in support of the motion. ( See Morchik v Trinity School, 257 AD2d 534, 536 [1st Dept 1999]; Arnold v Schmitton, 18 Misc 3d 135 [A], 2008 NY Slip Op 50184 [U], * 2 [App Term, 2d Dept].)
Similarly, and perhaps more importantly given the facts, Plaintiff may use the statements in the certified, but unsigned, transcript of Mr. Rivera as admissions of Defendant, since Defendant's designation of the superintendent as its witness for purposes of examination before trial cloaked the witness with "speaking authority." ( See Tyrell v Wal-Mart Stores, Inc., 97 NY2d 650, 652; Oddo v Edo Marine Air , 34 AD3d 774 , 775 [2d Dept 2006].) It may be that Plaintiff should also be permitted to rely on the certified, but unsigned, transcript of Ms. Baez, since, by submitting it, Defendant might be deemed to have adopted it as accurate. ( See Ashif v Won Ok Lee, 2008 NY Slip Op 9936, * 1 [2d Dept, Dec. 16, 2008].) As will appear, Ms. Baez's statements at the deposition are not, in any event, particularly helpful to Plaintiff.
Certain facts are undisputed, at least for purposes of this motion. The windows in Ms. Baez's apartment were equipped with guards when she took occupancy more than 20 years before the occurrence that gives rise to this action. In June 2006, Ms. Baez, with the assistance of a friend, removed the window guard from her living room window, the window guard that later hit Plaintiff, in order to install an air conditioner. "[S]ometime in late August, 2006," with the assistance of a neighbor, Ms. Baez removed the air conditioner, and "replaced the window guard into the window." (Affidavit of Delmara Baez, ¶¶ 9, 10.) The window guard "was not fastened, screwed or bolted into the frame of the window, but merely resting on the frame of the window." ( Id., ¶ 11.) On September 4, "when [Ms. Baez] opened the window, the window guard became lose [ sic], and fell out of the window" ( id., ¶ 12), striking Plaintiff.
When he was hit, Plaintiff was outside the building, two or three feet from the front door. At his deposition, he described his location, somewhat differently, as a cement walkway leading from the sidewalk to the front door, and as a cement platform at the top of three steps. (Examination Before Trial of Nelson Duran, at 22, 31.) Neither party addresses whether Plaintiff was on-premises or off-premises owned by Defendant, or whether it makes a difference.
Ms. Baez asserts in her Affidavit, "I have lived at 946 Bushwick Avenue, Apt. F2 . . . on the 6th floor for approximately twenty five (25) years by myself." ( Id., ¶ 3) The assertion is sufficient to establish prima facie that no child under 10 years of age resided with her at the time of the occurrence for purposes of the window guard regulation ( see 24 RCNY Health Code Reg. § 131.15 [a]; see also Molina v Sercia, 290 AD2d 425, 425-26 [2d Dept 2002].) There is no admissible evidence that Ms. Baez did not request in writing that window guards be installed, which would also have required that Defendant install them ( see 24 RCNY Health Code Reg. § 131.15 [c]); but any statutory obligation of the landlord would have ended for the window guard she removed.
In any event, the purpose of the regulation is to prevent falls from windows, particularly of children ( see Cunningham v L.P.T.G. Farragut Realty Corp., 200 AD2d 651, 652-53 [2d Dept 1994]), and not to protect persons below from injury from falling window guards. In this case, therefore, despite Plaintiff's contention to the contrary (Affirmation in Opposition, ¶¶ 8, 9, 15, 21), his injury was not the proximate result of a breach of duty to properly install or maintain the window guard in accordance with the requirements of the regulation ( see 24 RCNY Health Code Reg. §§ 12-10, 12-11.)
Which is not to say that Plaintiff's injury was not the proximate result of some other duty established at common law or derived from legislative command. Defendant's motion proceeds from the assumption that Defendant would be liable for injury resulting from an unreasonably dangerous condition, i.e., an inadequately installed window guard, that either Defendant created, or of which it had actual or constructive notice such that reasonable care would have required Defendant to correct it. ( See "Notice of Motion," ¶¶ 3, 27, 30-43.) As will appear below, Defendant's assumption is correct.
With that starting point, Defendant "has the burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence." ( See Appelgate v Long Island Power Authority, 53 AD3d 515, 515-16 [2d Dept 2008].) "A party does not establish its entitlement to summary judgment by merely pointing to gaps in the opponent's proof." ( Gonzalez v Beacon Terminal Assocs. L.P., 48 AD3d 518, 519 [2d Dept 2008].) Rather, Defendant must "affirmatively demonstrate the merit of [its] defense." ( See Vittorio v U-Haul Co. , 52 AD3d 823, 823 [2d Dept 2008].)
Defendant sufficiently establishes prima facie that it did not create the dangerous condition; the window guard it installed was removed, then reinstalled, by its tenant, Ms. Baez. In his Affidavit, the building superintendent, William Rivera, asserts that "at no time prior to the happening of the accident herein, did Delmara Baez notify me or the management office that she or another individual replaced the window guard, did not fasten, screw, or bolt the window guard into the frame of the window, but merely rest it on the frame of the window." (Affidavit of William Rivera, ¶ 11.) Mr. Rivera cannot, of course, speak to lack of notice by the management office.
"In general, knowledge acquired by an agent acting within the scope of his or her agency is imputed to the principal and the latter is bound by that knowledge even if the information is never actually communicated." ( Christopher S. v Douglaston Club, 275 AD2d 768, 769-70 [2d Dept 2000]; see also Center v Hampton Affiliates, 66 NY2d 782, 784.) "An averment by a manager or supervisor employed by a defendant responsible for the maintenance of premises as to his or her own lack of prior actual notice of a particular condition claimed to have existed on such premises is generally sufficient to constitute a prima facie showing that such defendant lacked prior actual notice of the condition in question." ( Rivas v 525 Bldg. Co., LLC, 306 AD2d 337, 339 [2d Dept 2003].) "[A]n institutional defendant may make a prima facie showing of a right to summary judgment in a premises liability action based on the absence of actual or constructive notice without the necessity of producing proof that every one of its employees who might conceivably have received notice of the condition in question had been questioned, and had denied receipt of such notice." ( Id.)
In her Affidavit, Ms. Baez asserts that at no time prior to this occurrence did she complain to the management office about the window guards or request an inspection of the window guards. (Affidavit of Delmara Baez, ¶¶ 6, 15, 16.) At her deposition, Ms. Baez testified that, after she reinstalled the window guard, she called the office, and asked for an inspection, because she "put [it] loose," "just put it over there." (Examination Before Trial of Delmira Baez, at 43-44.) But when asked whether she specifically requested an inspection of the window guards, she answered "no." ( Id. at 45.)
Defendant has sufficiently shown prima facie that it did not have actual notice of the dangerous condition on the premises. "To prove constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it'." ( Kramer v SBR C , 62 AD3d 667 , 669 [2d Dept 2009] [ quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986)].) Plaintiff does not suggest that the inadequate installation of the window guard would have been visible and apparent from outside Ms. Baez's apartment.
Ms. Baez asserts in her Affidavit that "the window guards were last inspected . . . on August 31, 2006 and they did not require maintenance or repair." (Affidavit of Delmara Baez, ¶ 5.) But Ms. Baez also asserts that the air conditioner was removed and the window guard reinstalled "sometime in late August, 2006" ( id., ¶¶ 9-11.) Only two inferences appear possible. Either at the time of the inspection the air conditioner had been removed from the living room window, and it should have been "visible and apparent" that the window guard "was not fastened, screwed or bolted into the frame of the window, but merely resting on the frame of the window." ( Id., ¶ 11.) Or the air conditioner was still in the living room window, and only other window guards were inspected.
Defendant does not rule out the possibility that there was an inspection of the inadequately installed window guard, which would have provided, at least, constructive notice of the dangerous condition a sufficient period of time before the September 4 occurrence such that reasonable care would have called for its correction. Contrary to Defendant's contention that "whether or not Defendant inspected the window guards is irrelevant for purposes of this motion" (Reply Affirmation, ¶ 15), its failure to establish that it did not inspect the subject window guard on August 31, an inspection suggested by an affidavit Defendant itself submitted on the motion, means that it has not established prima facie that it did not have constructive notice of the injury-producing condition.
Although not necessary for the resolution of Defendant's motion, some comment is warranted on the other possible inference from Ms. Baez's Affidavit, i.e., that at the time of the August 31 inspection, the air conditioner was still installed in the living-room window. Mr. Rivera's deposition testimony is inconsistent on whether he knew that Ms. Baez had removed a window guard in order to install an air conditioner (Examination Before Trial of William Rivera, at 49-50, 98). But his testimony is clear that many tenants removed window guards in order to install air conditioners; that some tenants would reinstall the window guards after the summer, and some would not; and that Defendant was aware of these practices, but left it to the tenants, or "under their responsibility." ( Id. at 92-98.)
Plaintiff argues, based upon this testimony, that "it is reasonably foreseeable Defendant . . . possessed actual and/or constructive notice of the dangerous and defective condition in existence at the time of the occurrence." (Affirmation in Opposition, ¶ 13.) On the other hand, Defendant relies on the Affidavit evidence that Ms. Baez did not request Defendant's permission to remove any window guard or to install an air conditioner, nor notify Defendant that she intended to do so, and contends that Defendant "was not responsible for causing the window guard to fall and strike Plaintiff;" rather "a non-party . . . removed the window-guard to install an air-conditioner and failed to properly fasten the window guard after she removed the air-conditioner and replaced the window guard into the window." (Affidavit of Delmara Baez, ¶¶ 13-14; Affidavit of William Rivera, ¶¶ 9,-10, 12; "Notice of Motion," ¶ 27.) Neither party sufficiently supports its position on this motion.
The authority that is perhaps closest on point is almost a century old. In Tobias v Lewis ( 182 AD 598 [1st Dept 1918], aff'd 230 NY 571), the plaintiff "was struck on the head and severely injured by a board which was the leaf of an extension table and fell or was thrown from the front of the building above where she was standing"; "tenants were accustomed during hot weather to use similar boards to cover these openings [in the platform of the fire escape] hot nights and put bedding thereon and sleep there"; and "defendants had either actual or constructive notice that their tenants were thus using the fire escape at night, but there is no evidence that this board had been on the fire escape before it fell that night or that it fell from the fire escape" ( id. at 599-600.)
After stating that the defendants were "not liable for the negligent acts of their tenants," the court assumed that "the duty devolved upon the defendants at common law as owners to forbid these unlawful practices by their tenants," i.e., obstructing the fire escapes, but concluded nonetheless that "it cannot be found or held that failure to perform such duty was the proximate cause of the accident." ( Id. at 601-02; see also Cosgrove v State of New York, 277 AD 596, 599-600 [3d Dept 1951] [open window]; Alexanderson v Brooklyn Trust Co., 258 AD 747, 747 [2d Dept 1939] [flowerpot on window ledge].)
The fundamental principle underlying Tobias v Lewis, whether framed in duty or proximate cause, remains sound. "A defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control." ( Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 233 [ quoting D'Amico v Christie, 71 NY2d 76, 88 (1987)].) "A duty may arise, however, where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant's actual control of the third person's actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others." ( Id.) "The key in each is that the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm." ( Id.)
The landlord/tenant relationship is not one that has allowed imposition of a duty on the landlord for the conduct of the tenant, at least where the tenant's conduct is more than merely negligent. ( See Cortez v Delmar Realty Co. , 57 AD3d 313 , 313 [1st Dept 2008]; Britt v New York City Hous. Auth. , 3 AD3d 514 , 514 [2d Dept 2004]; Blatt v New York City Hous. Auth., 123 AD2d 591, 592-93 [2d Dept 1986].) It makes no difference that the landlord may have had "actual or constructive notice of a tenant's criminal history." ( See Gibbs v Diamond, 256 AD2d 266, 267 [1st Dept 1998].)
It might be assumed that, had Plaintiff been injured as a result of Ms. Baez's dropping the window guard while removing it or reinstalling it, Defendant would not be liable. ( See Grimaldi v Manhattan Arms Hotel, Inc. , 39 AD3d 298 , 299 [1st Dept 2007] [tenant dropped air conditioner onto the street as she was trying to remove it from the window].) But it does not necessarily follow that a landlord cannot, as a matter of law, be liable where as a tenant negligently creates a dangerous condition in a structure or appurtenance on the premises. To the extent that Defendant argues a lack of actual or constructive notice, Defendant does not appear to be contending that under no circumstances could liability result. It would appear, to the contrary, that an owner of premises is not relieved from its duty to keep them reasonably safe simply because some act or omission of a tenant, whether or not constituting fault, contributed to creating the condition.
"It is the duty of the owner of a building, abutting upon a public street, to maintain it in such a condition that it shall not become dangerous to the traveling public." ( Apple v Muller, 262 NY 278, 280 [1933] [plate glass window].) "This obligation is not limited to the actual structure of the building and its usual appurtenances but applies to temporary attachments and projections over a highway which are dangerous to travelers." ( Rohlfs v Weil, 271 NY 444, 449 [1936] [scaffold]; see also Lofstad v S R Fisheries, Inc. , 45 AD3d 739 , 743 [2d Dept 2007] [roof-top shed]; Howe v Howe, 266 AD 799, 799 [2d Dept 1943] [window screen]; Gilder v Harris Fine Realty and Constr. Co., 249 AD 775, 755-76 [2d Dept 1936] [window glass]; Mc Nulty v Ludwig Co, 153 AD 206, 213-14 [2d Dept 1912] [sign]; Smith v Earl D. Hanson, Inc., 9 Misc 2d 244, 245 [Sup Ct, NY County 1957] [plate glass window].)
As to leased premises specifically, "[t]he duty to keep a building or part of it in repair is coextensive with the control maintained by the landlord." ( Zolezzi v Bruce-Brown, 243 NY 490, 497 [1926] [sign]; see also Howe v Howe, 266 AD at 799 [window screen]; Sherman v Bruno, 257 AD 1002, 1002 [2d Dept 1939] [awning].) In the case of a building governed by the Multiple Dwelling Law, that statute provides the requisite control and predicate for liability even where the tenant is responsible, in whole or in part, for the dangerous condition. ( See Multiple Dwelling Law § 78; Gilder v Harris Fine Realty and Constr. Co., 249 AD at 776; Smith v Earl D. Hanson, Inc., 9 Misc 2d at 246; see also Altz v Leiberson, 233 NY 16, 17-18 [1922].) Actual or constructive notice to the landlord is required. ( Id. at 18; see also Oquendo v Mid Mem Corp., 103 AD2d 705, 706 [1st Dept 1984] [carton of tar being hoisted].) The Building Code, in addition, includes window guards among the "external appurtenances" that must be periodically inspected by the landlord. ( See 1 RCNY § 32-03 [b] [3] [ii] [G].)
"The obligation of the owner of a private way to one lawfully using it is the same as that owed to one using a public highway." ( Dack v Trustees of Peekskill Military Academy, 247 AD 797, 797 [2d Dept 1936]; Bach v United States, 197 F Supp 600, 603 [NDNY 1961].) The duty includes protection from injury resulting from a part of a building or an appurtenance that falls. ( See Haack v Brooklyn Labor Lyceum Assoc., 93 AD 491 494 [2d Dept 1904].) It makes no difference here, therefore, whether Plaintiff was on a public walkway or a private walkway when he was hit with the window guard.
The question devolves, again, to notice — — does knowledge that a window guard has been removed to accommodate an air conditioner provide constructive notice that the window guard, if reinstalled, will be reinstalled negligently. "Constructive notice" is described both as a legal inference and a duty of inquiry. "Constructive notice is a legal inference from established facts." ( Bierzynski v New York Central R.R. Co., 31 AD2d 294, 297 [4th Dept 1969], aff'd 29 NY2d 804 [ quoting Birdsall v Russell, 29 NY 220, 248 (1864)].) "Constructive notice ordinarily means that a person should be held to have knowledge of certain facts because he knows other facts from which it is concluded that he actually knew, or ought to have known, the fact in question." ( Id. [ quoting 42 NY Jur., Notice and Notices, § 3.)
"Constructive notice also exists whenever it is shown that reasonable diligence would have produced actual notice." ( Id.) "A person is chargeable with constructive notice of any fact which would have been disclosed by a reasonably diligent inquiry if circumstances are such as to indicate to a person of reasonable prudence and caution the necessity of making inquiry to ascertain the true facts and he or she avoids such inquiry." ( Majer v Schmidt, 169 AD2d 501, 503 [1st Dept 1991].) "One who has reasonable grounds for suspecting or inquiring ought to suspect, ought to inquire, and the law charges him with the knowledge which the proper inquiry would disclose." ( Fidelity Deposit Co. v Queens County Trust Co., 226 NY 225, 233 [1919].) But, "[w]hen a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice will not be imputed." ( See Applegate v Long Island Power Auth. , 53 AD3d 515 , 516 [2d Dept 2008].)
However considered, on this record Plaintiff has not shown constructive notice based upon the removal of a window guard to accommodate an air conditioner. Even if it may be fairly inferred that the air conditioner will later be removed and the window guard reinstalled, it is difficult to identify the "foundation facts" ( see Bierzynski v New York Cent. R.R. Co., 31 AD2d at 297) to support the further inference of inadequate installation. ( See, for example, Yery Suh v Fleet Bank, N.A. , 16 AD3d 276 , 277 [1st Dept 2005] ["general awareness that water can turn to ice is legally insufficient"]; Rapino v City of New York, 299 AD2d 470, 471 [2d Dept 2002] [presence of rust alone insufficient].) Similarly, although a duty to inquire may flow more from policy than logic, the record does not reveal such probability of danger as to require inspection.
Even so, presumably constructive notice would not exist, and the commensurate duty of inquiry would not arise, until the air conditioner were removed and the window guard reinstalled, since until then the dangerous condition of an inadequately installed window guard would not be present, and there would be nothing to inspect or remedy. And, then, a plaintiff must show that the landlord had a reasonable period of time to remedy the condition before it caused injury. Assuming, therefore, a duty to inspect window guards from the Multiple Dwelling Law or the Building Code ( see Showverer v Allerton Assocs., 306 AD2d 144, 144 [1st Dept 2003]), a plaintiff must still demonstrate a breach of that duty before the injury-producing occurrence.
Again, however, on this motion the issue is not whether Plaintiff has shown enough to establish Defendant's liability, but whether Defendant has shown enough to establish prima facie that there can be no liability.
Defendant's showing falls short, and its motion must, therefore, be denied.