Opinion
4672
April 25, 2002.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered January 16, 2001, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Jay L.T. Breakstone, for plaintiffs-respondents.
Christopher Simone, for defendants-appellants.
Before: Saxe, J.P., Buckley, Rubin, Friedman, Marlow, JJ.
The record discloses that defendants owned and operated the building in which plaintiffs resided and had actual notice of the building's defective hot water heaters and the resulting hotter-than-normal water being supplied to the building's tenants. These circumstances raise issues of fact as to whether it was foreseeable that the infant plaintiff would sustain burns while bathing from negligently overheated water (see, Gordon v. E. Railway Supply, Inc., 82 N.Y.2d 555, 562) and, accordingly, summary judgment was properly denied. The intervening acts between defendants' conduct and the infant's injury do not under the circumstances here presented suffice, as a matter of law, to break the causal chain between defendants' negligence and plaintiff's harm (see, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315). In any event, there is an issue of fact as to whether defendants' negliglence was a concurrent proximate cause of plaintiffs' harm.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.