Horowitz v. 763 Eastern Associates, LLCHorowitz v. 763 Eastern Associates, LLC
Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the defendants 763 Eastern Associates, LLC, and Affordable Housing Real Estаte Corp., doing business as Affordable Housing Realty Corp., which was for summary judgment dismissing the complaint insofar аs asserted against them is denied, and the matter is remitted to the Supreme Court, Kings County, for a determination on the merits of the plaintiffs’ cross motion for a unified trial on the issues of liability and damages.
The infant рlaintiff allegedly was injured when he fell through the glass of a fixed panel adjacent to the interior оf the front entrance door of a building owned by the defendant 763 Eastern Associates, LLC, and managed by the defendant Affordable Housing Real Estate Corp., doing business as Affordable Housing Realty Corp. (hereinаfter together the Eastern defendants). The glass panel had been installed by the defendant Affraim Glass and Mirror Corp. (hereinafter Affraim) approximately three months prior to the accident.
The infant plaintiff, by his mother, and his mother individually, commenced this action. They alleged, among other things, that the defendants were negligent in failing to install “safety glass” in the panel in violation of certain New York City and New York State building codes, and that such negligence was a proximate cause of the infant plaintiff‘s injuries. The Eastern defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff cross-moved for a unified trial on the issues of liability and damages. The Supreme Court, inter alia, granted that branch of the Eastern defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them and denied the plaintiffs’ cross motion as academic.
Here, the Eаstern defendants demonstrated, prima facie, their entitlement to judgment as a matter of law by prеsenting evidence that the glass in the fixed panel was installed by an independent contractor in compliance with the applicable city and state building codes, and that the condition of the glass did not otherwise violate their duty to maintain the premises in a reasonably safe condition (see generally Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 14-15 [2011]; cf. Bradley v Smithtown Cent. School Dist., 265 AD2d 283 [1999]; Ambrosio v South Huntington Union Free School Dist., 249 AD2d 346 [1998]). However, in opposition, the plaintiffs’ submissions, including expert affidavits, raised a triable issue of fact as to whether Affraim violated city and state building codes by failing to install safety glass in the panel (cf. Hassan-Willis v St. Gerard‘s School, 6 AD3d 577, 578 [2004]; Sepulveda v Reynolds, 288 AD2d 368, 369 [2001]), and whether the Eastern defendants thereby breached a nondelegable duty to maintain the premises in a reasonably safe condition (see generally Cortez v Northeast Realty Holdings, LLC, 78 AD3d 754, 756 [2010]).
Furthermore, contrary to the Eastern defendants’ contention, they failed to establish, prima facie, that any failure to install safety glass in accordance with city and state building codes was not a proximate cause оf the infant plaintiff‘s injuries (see Matamoro v City of New York, 94 AD3d 722, 722-723 [2012]; Canela v Audobon Gardens Realty Corp., 304 AD2d 702, 703 [2003]). Accordingly, the Supreme Court should have denied that branch of the Eastern defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them.
To the extent that the plaintiffs seek relief regarding Affraim’s separate motion for summary judgment dismissing the complaint insofar as asserted against it, we note thаt the Supreme Court did not decide that motion in the order appealed from. Thus, the plaintiffs’ cоntentions regarding that separate motion are not properly before this Court.
The parties’ remaining contentions are without merit or need not be reached in light of our determination. Skelos, J.P., Miller, Hinds-Radix and LaSalle, JJ., concur.