66 A.D.2d 874 | N.Y. App. Div. | 1978
Lead Opinion
-In consolidated actions to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County, dated February 28, 1978, which denied their motion for summary judgment. Order reversed, on the law, without costs or disbursements, and motion granted. The issue to be decided in this personal injury case is whether the complaint should have been dismissed and summary judgment granted to defendants on the ground that the alleged conduct of defendants was not the proximate cause of the infant plaintiff’s injuries, as a matter of law. Special Term, citing Pagan v Goldberger (51 AD2d 508), denied defendants’ motion and held that the issue of proximate cause was for the jury. We disagree with the conclusion of Special Term. In our view, this is a case where "The range of reasonable apprehension is * * * a question for the court” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 345) and we hold, as a matter of law, that the conduct of the defendants was not the proximate cause of the infant plaintiff’s injuries. Since this case involves a motion by defendants for summary judgment, plaintiffs’ allegations must be accepted as true. Plaintiffs commenced the instant action against the defendants Lazaroff and defendant Dunmar Realty alleging that they owned and managed 1720 Nostrand Avenue, Brooklyn, New York, wherein plaintiffs were tenants. They further alleged that defendants breached their duty to supply their tenants with hot water and that the infant plaintiff, Harold Martinez, sustained severe and permanent injuries due to defendants’ violation of applicable codes, statutes, regulations and ordinances, and due to defendants’ careless and negligent maintenance and management of the building. Specifically, plaintiffs alleged that approximately two weeks prior to the accident, the boiler in the apartment building broke down and no hot water was available to the tenants. The defendants had notice of the condition, but the boiler had not been fixed by May 3, 1975. During this two-week period, the infant plaintiff’s father would heat a pot of hot water on the kitchen stove and carry it through the apartment to the bathroom to be used for cleanliness and sanitation. In the early afternoon of May 3, 1975, as the father was carrying the pot of boiling water past the door of his son’s bedroom on his way from the kitchen to the bathroom, the infant plaintiff came out of the bedroom and collided with the pot. The pot tilted and hot water spilled onto the infant, seriously burning him. The instant action ensued. In contrast to the decision of Special Term, we are of the view that the principles of Pagan v Goldberger (supra) mandate a dismissal of the complaint. In Pagan v Goldberger (supra), a three-year-old infant was injured in his apartment when he fell against a piece of sharp metal on a radiator. The metal piece had been exposed when a knob on top was removed from the radiator by an employee of the landlord preparatory to repair. The landlord had knowledge of the condition for several months. The trial court dismissed the complaint at the close of plaintiffs’ case on the ground that plaintiffs had failed to prove "both proximate cause and foreseeability as elements of the claim of negligence on the part of the defendant” (Pagan v Goldberger, supra, p 509). In reversing and granting a
Dissenting Opinion
It is undisputed that Harold Martinez, the five-year-old plaintiff, his parents and brother were tenants in the building owned, operated and managed by the defendants. Also contained in the record on appeal is evidence that for approximately 15 months prior to the accident, there were recurring instances of defendants’ failure to supply hot water to their tenants. As a result of their chronic inaction in that regard, and because of complaints made by tenants to the city’s Housing and Development Administration, numerous violations were placed on the building by such agency. Some of the violations issued were nearly 15 months old at the time of the accident. With respect to this action, evidence was also adduced at the examinations before trial that about two weeks before the accident, the infant plaintiff’s parents and other tenants in the building found it necessary to complain again to the defendants and the appropriate municipal authorities about the lack of hot water. According to the examination before trial of the boy’s father, each day during the two-week period, as on the many prior occasions, he heated pots of water on the kitchen stove and carried them through the apartment to the bathroom for purposes of cleanliness and sanitation. As the majority indicates, on the day of the accident, May 3, 1975, at about 1:30 p.m., as the boy’s father was carrying the pot of water past the door of his son’s bedroom on his way from the kitchen to the bathroom, the child ran out of the bedroom and collided with the pot, causing the pot to tilt and the boiling water to spill onto the child.