Opinion
2014-04-2
Ilene TAYLOR, etc., et al., respondents, v. NEW YORK CITY HOUSING AUTHORITY, appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Marie Lowery and Patrick J. Lawless of counsel), for appellant. Simonson Hess Leibowitz & Goodman, P.C., New York, N.Y. (Edward S. Goodman of counsel), for respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Marie Lowery and Patrick J. Lawless of counsel), for appellant. Simonson Hess Leibowitz & Goodman, P.C., New York, N.Y. (Edward S. Goodman of counsel), for respondents.
REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover damages for wrongful death, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 8, 2012, as denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law. Contrary to the defendant's contention, it failed to establish that it installed an operational smoke detector in the subject apartment in compliance with section 27–2045(a)(1) of the Administrative Code of the City of New York prior to the subject fire on February 17, 2008 ( cf. Vanderlinde v. 600 W. 183rd St. Realty Corp., 101 A.D.3d 583, 955 N.Y.S.2d 516;Curry v. 1716 Ave. T Realty LLC, 89 A.D.3d 978, 979, 933 N.Y.S.2d 342;Carter v. Grenadier Realty, 83 A.D.3d 640, 641, 922 N.Y.S.2d 86;Fairclough v. 679 Magenta, 309 A.D.2d 619, 620, 765 N.Y.S.2d 623;see also Peyton v. State of Newburgh, Inc., 14 A.D.3d 51, 53, 786 N.Y.S.2d 458;Fields v. S & W Realty Assoc., 301 A.D.2d 625, 754 N.Y.S.2d 348;Acevedo v. Audubon Mgt., 280 A.D.2d 91, 94, 721 N.Y.S.2d 332).
The defendant also failed to establish its prima facie entitlement to judgment as a matter of law on the basis that any alleged failure to install an operational smoke detector was not a proximate cause of the decedent's death and of the other plaintiffs' alleged injuries ( see generally Pappalardo v. Long Is. R.R. Co., 36 A.D.3d 878, 880, 829 N.Y.S.2d 173;Croce v. Budget Rent–A–Car Corp., 7 A.D.3d 748, 776 N.Y.S.2d 899).
Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiffs to raise a triable issue of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.