Practice point: The Appellate Division reversed, and dismissed the third-party complaint in this action for personal injuries allegedly sustained by plaintiff
when she was burned by hot water while showering in the bathroom of an
apartment where third-party defendant was superintendent. Third-party defendant met its initial burden of demonstrating that it did not
create or have actual or constructive notice of the alleged dangerous
condition. Although third-party defendant acknowledges acting to address
complaints of no heat or hot water on the upper floors of the building
within two weeks of the incident which resulted in plaintiff's injuries,
the undisputed evidence establishes that the domestic hot water supply
system and the heating system for the building were separate, and that
adjustments made by third-party defendant to the heating system would
have had no effect on the domestic hot water supply system.
Student note: Third-party plaintiff failed to present evidence that any action
taken by third-party defendant caused excessively hot water. Third-party
plaintiff's expert expressly stated that he
did
not evaluate the heating system, which was different from the domestic
hot water supply system. Although he opined that leaving the domestic
hot water supply system in the hands of an inexperienced person, such as
third-party defendant, was dangerous and negligent, no evidence was
presented that any action by third-party defendant proximately caused
plaintiff's injuries or that third-party defendant was responsible for
repairs to the domestic hot water supply system.
Case:
Duff v. 646 Tenth Ave., LLC, NY Slip Op 07589 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: A counterclaim to recover unpaid rent.
