Opinion
5988 5989 Index 350177/09
03-15-2018
S.H., an Infant Under the Age of Fourteen Years, etc., Plaintiff–Appellant, v. NEIGHBORHOOD PARTNERSHIP HOUSING DEVELOPMENT FUND COMPANY, INC., et al., Defendants–Respondents, Joseph Rodney, Defendant. [And a Third–Party Action]
The Fitzgerald Law Firm, P.C., Yonkers (Mitchell Gittin of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for Neighborhood Partnership Housing Development Fund Company, Inc., respondent. Cozen O'Connor, New York (Amanda L. Nelson of counsel), for the Odessa Apartments LLC, respondent.
The Fitzgerald Law Firm, P.C., Yonkers (Mitchell Gittin of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for Neighborhood Partnership Housing Development Fund Company, Inc., respondent.
Cozen O'Connor, New York (Amanda L. Nelson of counsel), for the Odessa Apartments LLC, respondent.
Acosta, P.J., Richter, Kapnick, Kahn, Gesmer, JJ.
Judgments, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered May 26, 2015 and on or about June 14, 2016, dismissing the complaint as against defendant Neighborhood Partnership Housing Development Fund Company, Inc. (NPH) and defendant the Odessa Apartments, LLC (Odessa), pursuant to an order, same court and Justice, entered April 7, 2015, which, inter alia, granted the motions of NPH and Odessa for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Dismissal of the complaint as against NPH and Odessa was proper because there is a lack of evidence to support an inference that they had notice that a child under seven resided in the apartment (see generally Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 646–647, 649 N.Y.S.2d 115, 672 N.E.2d 135 [1996] ). The fact that the building superintendent may have observed infant plaintiff present on a single occasion, or even occasionally, without more, is insufficient to confer knowledge that infant plaintiff resided there (see Worthy v. New York City Hous. Auth., 18 A.D.3d 352, 795 N.Y.S.2d 231 [1st Dept. 2005] ; Duarte v. Community Realty Corp., 42 A.D.3d 480, 839 N.Y.S.2d 231 [2d Dept. 2007] ).