Opinion
104559/10
01-03-2012
Vintage Rugs, Inc. and TRAVELERS PROPERTY AND CASUALTY COMPANY OF AMERICA a/s/o VINTAGE RUGS, INC., Plaintiff, v. Carnegie Hill Management Corporation, APARTMENTS BY OWNERS, INC. and ZIMAK COMPANY, Defendants.
, J.
Defendant Carnegie Hill Management Corporation (Carnegie Hill) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted as against it.
FACTUAL BACKGROUND
This is a consolidated negligence action seeking recovery of property damage as the result of a water leak from a clogged toilet which occurred on March 13, 2009, at the premises known as 6-8 East 30th Street, New York, New York. Plaintiff Vintage Rugs, Inc. (Vintage Rugs) is seeking damages for its uninsured property damage, and plaintiff Travelers Property Casualty Company of America a/s/o Vintage Rugs, Inc. (Travelers) is seeking, by way of subrogation, recovery of the money that it paid to its subrogor, Vintage Rugs, in connection with the leak. By stipulation of the parties, Travelers' claims asserted as against Carnegie Hill were discontinued with prejudice. Motion, Ex. C.
Defendant Zimak Company (Zimak) is the owner of the premises, and Vintage Rugs is a ground-floor subtenant of the building. Apartment by Owners, Inc. (ABO) is the lessee of an apartment on the third floor of the building. The property is managed by defendant Carnegie Hill.
The complaint alleges only one cause of action for negligence against Carnegie Hill. Motion, Ex. D. According to the bill of particulars, Vintage Rugs alleges that Carnegie Hill "negligently and carelessly operated, managed, repaired and/or maintained the toilet located on the third floor ... and failed to timely notice the flooding condition ... ." Motion, Ex. G. No statutory violations have been alleged. Motion, Ex. H.
It is Carnegie Hill's position that it should be granted summary judgment because there is no evidence that Carnegie Hill either created the alleged condition which caused the leak or had constructive notice of such condition, and that it repaired the problem within a reasonable time after receiving actual notice.
Henry Sasson (Sasson), a principal of Vintage Rugs, was deposed in this matter and testified that, at the time of the occurrence, he was alone in the store and became aware of the leak when he heard water dripping. Sasson EBT, at 81-82. Sasson stated that he did not know how long the water had been dripping before he first heard the water. Id. at 84. Further, Sasson said that he never observed the source of the water, nor did he know the exact cause of the leak. Id. at 89-90, 101. According to Sasson, his only knowledge of the cause of the leak came from a conversation that he had with an employee of a second-floor tenant, who allegedly told him that the leak came from a bathroom in a third-floor apartment, and that she observed a Hispanic man standing over the toilet in that bathroom as the toilet overflowed. Id. at 96-100. That same person allegedly told Sasson that she did not know what caused the leak, but she conjectured that the man that she observed may have clogged the toilet. Id. Sasson thought that the water flowed into his premises for two-to-three hours before the super showed up, and that the super came to the building within one or two hours of the time that he first noticed the leak. Id. at 106, 111.
Michael Eisenberg (Eisenberg), a principal of ABO, was also deposed in this matter and testified that ABO leased Apartment 3B in the building. Eisenberg EBT, at 44-48. According to Eisenberg, ABO would lease apartments, furnish them, and then sublet them. Id. Eisenberg said that, on the day of the leak, an ABO employee, who is Hispanic, was setting up the apartment in preparation for it being sublet , and that he, Eisenberg, heard about the leak from the super who arrived at the building within 30 minutes of being informed of the problem. Id. at 61-63. According to Eisenberg, ABO's employee allegedly said that he had used the toilet, left the apartment, but returned to the apartment when informed about the leak. Id. at 67, 80. Eisenberg said that the building superintendent told him that the toilet was clogged and that a ball in the water tank was defective. Id. at 74-77, 126, 139. Eisenberg averred that he was unaware of any problems with the toilet or the ball before the incident. Id. at 74-75, 77, 87, 136.
By order of this court, dated November 14, 2011, ABO is precluded from calling this witness at trial.
Rado Vendel (Vendel), the building's live-in superintendent, was also deposed in this matter and testified that he received a telephone call from a second-floor tenant informing him of the leak and that he arrived at the building within 30 minutes of receiving the call. Vendel EBT, at 9, 80-82, 93-94. Vendel said that he turned the water off, snaked the toilet, and dislodged the clog in the toilet. Id. at 105-108. Vendel stated that the fact that the water flowed while he was using the snake indicated to him that there was a clog that the snake dislodged. Id. at 116. After the clog was removed, Vendel turned the water back on and removed the tank cover, wherein he observed a "flip rubber" stuck in the up position. Id. at 117-119. Vendel averred that, when the flip rubber is kept up, water will continue to flow from the tank into the toilet bowl without overflowing, unless the toilet is also clogged. Id. at 118-122, 135-137.
According to Vendel, the only reason that the leak occurred was because the toilet was clogged. Id. at 137. When Vendel hit the toilet handle, the flip rubber immediately went down, but he decided to change the flip rubber as a precaution. Id. at 121, 127-128. Vendel stated that he did not know what caused the flip rubber to stick, but opined that the user of the tank forcibly wrenched the toilet handle, which caused the flip rubber to stick, because the flip rubber can become stuck only when the toilet is flushed. Id. at 129, 133-134, 136. Vendel testified that he was not aware of any problem with the toilet or the flip rubber prior to the incident, that no one ever complained about a problem with the toilet, and that he inspected the apartment before it was leased. Id. at 68-69, 124-125, 211-212.
James Stevenson, an adjuster from Travelers, testified that, after an investigation, he confirmed that the cause of the damage to Vintage Rugs' property was a leak from the third floor toilet. Motion, Ex. L.
Carnegie Hill maintains that no evidence has been presented that it created or was aware of any problem with the toilet, and that it corrected the problem immediately after notification of the incident, thereby entitling it to summary judgment dismissing the complaint asserted as against it.
In opposition to the instant motion, Vintage Rugs states that there are issues of fact precluding granting Carnegie Hill the relief sought because Carnegie Hill failed to remedy a recurring problem.
Sasson has provided an affidavit in support of Vintage Rugs' opposition, in which he reasserts his contention that Vendel did not respond to his call about the leak for two-to-three hours, and that he was informed by the employee of a second-floor tenant that she observed several inches of water on the third floor and that she informed Vendel of this fact by telephone, before Sasson became aware of the leak. Sasson claims that Carnegie Hill was negligent in not having Vendel at the location (Vendel said that he was at Carnegie Hill's office at the time that he received the call) and that Carnegie Hill was also negligent in not having someone come to the building before Vendel could get there.
Sasson also alleges that two years prior to the incident in question, in April of 2007, Vintage Rugs suffered similar damage when water leaked through its ceiling. Opp., Ex. 3. Sasson says that he believes that this earlier incident was caused by a leak from the drain pipe for the main roof.Sasson also avers that, in 2008, he had two other minor leaks, of which he informed Vendel; however, according to Sasson's affidavit, neither of these leaks was caused by the third-floor toilet.
Vintage Rugs has provided an affidavit from the employee of the second floor tenant, in which she confirms that she saw a Hispanic male in the third-floor apartment, who indicated that the toilet was overflowing, and that a few minutes later Vendel showed up. This affiant averred that she noticed water leaking for approximately 20 minutes before she went to investigate its source, and that it took about an hour and a half for the water to stop flowing after the super showed up. The court notes that this contradicts Sasson's version of the time that it took Vendel to appear and the allegation that Vendel was called several hours before his appearance.
Vintage Rugs has also provided the affidavit of the second- floor tenant, the previous affiant's employer, who said that he did not see the super arrive until two hours after he initially knocked on the super's door.
It is Vintage Rugs' position that there is conflicting testimony regarding how long it took Vendel to arrive on the scene to correct the problem, thereby presenting an issue of fact as to whether Carnegie Hill was negligent in allowing too much time to elapse between being notified of the problem and fixing it. Vintage Rugs also argues that Carnegie Hill was on notice of a continuing problem with water leakage.
In reply, Carnegie Hill maintains that the prior incidents mentioned by Sasson, although involving leaking water, had nothing to do with the third-floor toilet and, therefore, are irrelevant to the issue of prior or constructive notice. Further, Carnegie Hill asserts that the affidavit of the second- floor tenant should not be considered because this witness was never disclosed by Vintage Rugs prior to filing the instant motion. Reply. Ex. A. Therefore, based on the foregoing, Carnegie Hill contends that no evidence in admissible form has been provided to indicate that Carnegie Hill either created the defective condition or had constructive notice of the condition, or that it failed to correct the condition within a sufficient time after receiving actual notice of the problem.
DISCUSSION
"The proponent of a summary judgment motion must make 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 [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).
In order to hold a party liable for a dangerous condition within a premises that resulted in damage to another, it must be established that the party so charged either created the dangerous condition or had prior actual or constructive notice of the condition.
Early v Hilton Hotels Corp., 73 AD3d 559 (1st Dept 2010).
"[A] plaintiff must demonstrate that the defendant either created, or had actual or constructive notice of the hazardous condition which precipitated the injury. However, notice alone is not enough; the plaintiff must also show that defendant had a sufficient opportunity, within the exercise of reasonable care, to remedy the situation' after receiving such notice [internal citations omitted]."Aquino v Kuczinski, Vila & Associates, P.C., 39 AD3d 216, 219 (1st Dept 2007).
"A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected."Larsen v Congregation B'Nai Jeshurun of Staten Island, 29 AD3d 643, 643 (2d Dept 2006); Gordon v American Museum of Natural History, 67 NY2d 836 (1986); Viera v Riverbay Corp., 44 AD3d 577 (1st Dept 2007).
However, a general awareness that a dangerous condition may be present is insufficient to hold a defendant liable. See Gordon v American Museum of Natural History, 67 NY2d 836 (1986). Any notice of a dangerous condition "must call attention to the specific defect or hazardous condition and its specific location." Mitchell v New York University, 12 AD3d 200, 201 (1st Dept 2004).
In the case at bar, no evidence has been presented to indicate that Carnegie Hill created the clog in the third-floor toilet that caused Vintage Rugs damage. Nor is there any evidence that Carnegie Hill occupied or controlled the third floor apartment where the toilet was located, which might give rise to liability for a dangerous condition that Carnegie Hill did not create. Gibbs v Port Authority of New York, 17 AD3d 252 (1st Dept 2005). Further, there is no evidence that Carnegie Hill had constructive knowledge of the problem; none of Sasson's statements regarding prior water leakage had anything to do with the third-floor toilet. Hence, the only issue for consideration by the court is whether Carnegie Hill remedied the problem within a reasonable time after receiving actual notice of the leak.
In considering the evidence presented, the court will not consider the affidavit of the second-floor tenant, because he is a nonparty to the action and Vintage Rugs failed to identify him as notice witness. Rizos v Galini Seafood Restaurant, 89 AD3d 1004 (2d Dept 2011); Muniz v New York City Housing Authority, 38 AD3d 628 (2d Dept 2007). Nor will the court consider any hearsay statements appearing in the attached depositions and affidavits, since such statements do not constitute evidence in admissible form. Parkson v Store 24, Inc., 232 AD2d 465 (2d Dept 1996).
According to the admissible evidence provided with this motion and the opposition, there was no prior notice or awareness of a clog in the third-floor toilet. Sasson testified that the super appeared within one to two hours of being notified and immediately shut off the water; the super testified that he arrived at the building within one-half hour of being notified; the employee of the second-floor tenant provided an affidavit stating that the super appeared within minutes of her discovering the source of the leak; and Eisenberg testified that the super arrived within 30 minutes of being notified. Therefore, the parameters of the time that it took Carnegie Hill to rectify the problem after notification is between one-half to two hours.
Based on the evidence presented in admissible form, the court concludes that Carnegie Hill remedied the defective condition within a reasonable period of time after being notified of the problem. The court is totally unpersuaded by Sasson's conjecture and speculation that the problem would not have occurred had the super been on the premises at the exact moment that the leak was discovered, since the water was leaking for a considerable period of time prior to discovery. See generally Marino v Parish of Trinity Church, 67 AD3d 500 (1st Dept 2009). Moreover, there is no legal requirement that a super be physically on the premises 24-hours per day, seven days per week. Therefore, the fact that the super was not at the building at the moment that the leak was first noticed does not establish a failure of Carnegie Hill's duty of care.
Based on the foregoing, Carnegie Hill's motion is granted.
Accordingly, it is hereby
ORDERED that Carnegie Hill Management Corporation's motion for summary judgment is granted and the complaint and cross claims asserted as against it are severed and dismissed, and the Clerk is directed to enter judgment in favor of this defendant, with costs and disbursements as taxed by the Clerk; and it is further
ORDERED that the remainder of the action shall continue and the parties shall proceed to mediation.
ENTER:
___________________________
Joan M. Kenney, J.S.C.