Opinion
16811/08.
Decided August 30, 2010.
Willard G. LaFauci, Esq., Law Offices of Joel L. Getreu, P.C., New York, NY, Attorney for Plaintiff.
Joshua D. Lindy, Brody, Benard Branch LLP, New York, NY, Attorney for Defendant.
By notice of motion filed on April 12, 2010, under motion sequence number one, defendant Starrett City, Inc. ("Starrett City") moves pursuant to CPLR § 3212 for an order granting it summary judgment in its favor on liability and dismissing the complaint.
BACKGROUND
On June 28, 2008, China Rabalais ("Rabalais") and Kysha Jones ("Jones") commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. Defendant Starrett City, Inc. joined issue by its verified answer dated July 2, 2008.
The verified complaint contains twenty-five allegations of fact in support of two causes of action. In pertinent part, the complaint alleges Starrett City owns a multiple dwelling located at 1440 Freeport Loop in Kings County New York and the plaintiffs resided in apartment 4E therein. The first cause of action seeks damages for personal injuries sustained by Rabalais on February 24, 2006, when a defective shower knob in her apartment injured her hand due to Starrett City's negligent failure to remedy the defective condition. The second cause of action is for Jones' derivative injuries.
On February 13, 2009, the infant plaintiff was found by this court to possess the capacity to understand an oath.
MOTION PAPERS
Starrett City's motion papers consist of a notice of motion and affirmation of counsel annexed to which there are nine exhibits labeled A through I. Exhibit A is the instant summons and verified complaint. Exhibit B is Starrett City's verified answer. Exhibit C is Starrett City's demand for a verified bill of particulars. Exhibit D is Starrett City's verified bill of particulars. Exhibit E is a copy of the transcript of the deposition testimony of Rabalais taken on September 18, 2009. Exhibit F is a copy of the transcript of the deposition testimony of Jones taken on September 18, 2009. Exhibit G is a copy of the transcript of the deposition testimony of Josapha Gonzalez, a Superintendent of Starrett City, taken on October 26, 2009. Exhibit H is a copy of an affidavit of Josapha Gonzalez. Exhibit I is a copy of an affidavit of Margaret Maxwell, an employee of the Starrett City Maintenance Office.
Plaintiffs oppose the motion with an affirmation of their counsel and three annexed exhibits. The first exhibit is a black and white photocopy of a photograph of the allegedly defective shower knob. The second and third exhibit are the respective affidavits of Rabalais and Jones.
Starrett City submitted an affirmation of their counsel in reply to plaintiffs' opposition.
LAW AND APPLICATION
A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact ( Kolivas v. Kirchoff , 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept. 1995]). A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp., 68 NY2d 320; Napolitano v. Suffolk County Dept. Of Public Works , 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York 49 NY2d 557, 560 [1980]). "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" ( See, Mennerich v. Esposito , 4 AD3d 399 [2nd Dept. 2004]).
In addition, the elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty ( See, Lapides v. State, 57 AD3d 83 [2nd Dept. 2008]).
Liability for a dangerous or defective condition on real property is generally predicated on ownership, occupancy, control or special use of the property. Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property ( See, Usman v. Alexander's Rego Shopping Center, Inc. , 11 AD3d 450 [2nd Dept. 2004]). Starrett City does not dispute that it owns 1440 Freeport Loop, Brooklyn, NY, where the accident occurred, and that it consequently owed plaintiffs a duty of care.
Rabalais testified at her deposition that on February 24, 2006, while she was in the bathroom of apartment 4E located at 1440 Freeport Loop, Brooklyn, NY (hereinafter "the subject premises"), the hot water knob in the shower came off and forcefully struck her causing personal injuries. At the time of this accident, the plaintiffs had occupied the subject premises as tenants for two weeks. Two weeks before the accident, Starrett City, Inc., inspected the apartment to make sure nothing within it was broken.
Where a plaintiff sustains injuries due to an allegedly dangerous or defective condition on real property, the defendant may meet its prima facie burden on a motion for summary judgment by presenting evidentiary proof in admissible form that it had neither actual notice of the dangerous condition, nor constructive notice for a sufficient length of time to discovery and remedy the dangerous condition, and that it neither caused nor created the dangerous condition ( See, Bridges v. Wyandanch Community Development Corp. , 66 AD3d 938 [2nd Dept. 2009]).
In support of its motion, Starrett City presents the sworn deposition testimony as well as a separate affidavit of Starrett City superintendent Josapha Gonzalez, who stated that he was responsible for seeing to it that the subject premises was maintained in a safe condition. Mr. Gonzalez avers in his deposition testimony that Starrett City had no actual notice of the defective condition. Furthermore, Margaret Maxwell, an employee of the Starrett City's maintenance office, avers in her affidavit that she is familiar with the records kept in the regular course of business regarding the subject premises and that she found no records of any complaints about or repairs to the shower knobs. In addition, both Rabalais and Jones state in their deposition testimony that they never complained about the allegedly defective condition prior to the accident. Thus, Starrett City has made a prima facie showing that it had no actual notice of the defective condition.
"To constitute constructive notice, a condition must be visible and apparent, and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it" ( Stone v. Long Island Jewish Medical Center, 302 AD2d 376 [2nd Dept. 2003] citing Gordon v. American Museum of Natural History, 67 NY2d 836).
In support of its motion, Starrett City presents the deposition testimony of Rabalais in which she states that prior to the day of the accident she had no problem with anything in the bathroom area. Rabalais further states that after the accident the faucet was repaired, but that she is not happy with it, and that she is still afraid it is going to come back out of the wall. Clearly then, whatever defective condition there may have been within the shower knob that allegedly injured Rabalais was not "visible and apparent" ( Stone v. Long Island Jewish Medical Center, 302 AD2d 376 [2nd Dept. 2003]). Thus, through its presentation of Rabalais' deposition testimony, Starrett City has made a prima facie showing that it had no constructive notice of the alleged defective condition.
Starrett City also makes a prima facie showing that it neither caused nor created the defective condition through its presentation of the affidavit of superintendent Josapha Gonzalez in which he states that on January 27, 2006, prior to the arrival of plaintiffs as tenants in the subject premises, he personally inspected the subject premises and found the shower faucets to be in working order.
Furthermore, where, as here, an object capable of deteriorating is concealed from view, a property owner's duty of reasonable care entails periodic inspection of the area of potential defect ( See, Hoffman v. United Methodist Church, WL 3155341 [2nd Dept. 2010] citing Hayes v. Riverbend Housing Co., Inc , 40 AD3d 500 [1st Dept. 2007]). If the landlord has not violated its inspection obligation, there is no issue as to constructive notice ( Hayes v. Riverbend Housing Co., Inc , 40 AD3d 500 [1st Dept. 2007]).
In support of its motion, Starrett City presents the affidavit of Josapha Gonzalez who avers that he inspected the subject premises on January 27, 2006. Thus, Starrett City has demonstrated prima facie that it did not violate whatever inspection obligation it may have had.
Starrett City has thus met its burden of establishing prima facie that it had neither actual nor constructive notice of the alleged defective condition and neither caused nor created it. The burden on the Starrett City's instant motion now shifts to plaintiffs to raise a triable issue of fact.
Plaintiffs opposition papers consist of an affirmation of counsel, a photograph of the defective bathroom faucet and the plaintiffs' respective affidavits. Neither the photograph nor the plaintiffs' respective affidavits raises a triable issue of fact as to Starrett City's lack of notice of the defective condition or that Starrett City did not cause or create the condition.
However, it is possible to raise a triable issue of fact by application of the doctrine of res ipsa loquitur ( See, Hoffman v. United Methodist Church, WL 3155341 [2nd Dept. 2010]). Furthermore, a plaintiff's failure to plead res ipsa loquitur does not constitute a bar to its application where the facts warrant its application ( Weeden v. Armor Elevator Co., Inc., 97 AD2d 197 [2nd Dept. 1983]). The court will therefore evaluate the facts to determine whether the doctrine is applicable to this case.
Where the actual or specific cause of an accident is unknown, as is the case here, under the doctrine of res ipsa loquitur, a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant's relation to it ( Kambat v. St. Francis Hospital, 89 NY2d 489). The doctrine of res ipsa loquitur recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence ( See, Kambat v. St. Francis Hospital, 89 NY2d 489 citing Dermatossian v. New York City Tr. Auth., 67 NY2d 219).
Under the doctrine of res ipsa loquitur, once a plaintiff's proof establishes the following three conditions, a prima facie case of negligence exists and plaintiff is entitled to have res ipsa loquitur considered by the trier of fact. First, the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff ( See, Kambat v. St. Francis Hospital, 89 NY2d 489 citing Ebanks v. New York City Tr. Auth., 70 NY2d 621).
Furthermore, in order to rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence ( See, Kambat v. St. Francis Hospital, 89 NY2d 489 citing Restatement 2nd of Torts § 328 D, comment e). In other words, all that is required is that the likelihood of other possible causes of the injury "be so reduced that the greater probability lies at defendant's door" ( See, ( Kambat v. St. Francis Hospital, 89 NY2d 489)citing 2 Harper and James, Torts § 19.7, at 1086).
The Court of Appeals has stated that res ipsa loquitur is appropriately charged to a jury when, upon a commonsense appraisal of the probative value of the circumstantial evidence, the inference of negligence is justified ( See, Kambat v. St. Francis Hospital, 89 NY2d 489 citing George Foltis, Inc. v. City of New York, 287 NY 108).
Submission of res ipsa loquitur to a jury merely permits the jury to infer negligence from the circumstances of the occurrence. The jury is thus allowed — but not compelled — to draw the permissible inference ( See, Kambat v. St. Francis Hospital, 89 NY2d 489citing Dermatossian v. New York City Tr. Auth., 67 NY2d 219). It is significant to note that "[i]n those cases where conflicting inferences may be drawn, choice of inference must be made by the jury" ( See, Kambat v. St. Francis Hospital, 89 NY2d 489 citing George Foltis, Inc. v. City of New York, 287 NY 108).
As for the exclusive control element, according to the Court of Appeals in Dermatossian v. New York City Tr. Auth., 67 NY2d 219, courts do not generally apply literally the requirement that, in order for a jury charge of res ipsa loquitur to be appropriate, the instrumentality which caused the harm have been within the exclusive control of the defendant. Rather, the purpose of the exclusive control requirement is to mandate that the evidence afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it ( Dermatossian v. New York City Tr. Auth., 67 NY2d 219).
The defect in the shower faucet is one which would not ordinarily occur in the absence of negligence. Here, there is no dispute that Starrett City inspected the faucet in question two weeks before the plaintiffs took occupancy and found no problems with the faucet. The infant also averred that she had no problem with the faucet before the date of her injury. It is clear that it is the plaintiffs who had exclusive possession and control of the instrument of harm at the time of the accident and not Starrett City. Under these circumstances, the element of exclusive control by the defendant is lacking ( See Costello v. Panavision of New York, 8 AD3d 143 [1st Dept., 2004]). Therefore, the doctrine of res ipsa loquitur is inapplicable and may not be used to raise a triable issue of fact
Accordingly, Starrett City's motion pursuant to CPLR § 3212 for an order granting summary judgment in its favor on liability and dismissing the complaint is granted.
The foregoing constitutes the decision and order of the court.