Opinion
January 12, 1999.
Appeal from the Supreme Court, New York County (Emily Goodman, J., and a jury).
The verdict on liability has sufficient support in the evidence that defendants intentionally set the domestic hot water supplied to the apartments in the building to a level so high that, in off-peak hours, the water, would cause second- and third-degree burns upon immediate contact, creating a foreseeable risk of injury to plaintiff, who was hired to install new kitchen cabinets and hook up the water pipes to appliances ( see, Kush v. City of Buffalo, 59 N.Y.2d 26, 29-30). It is of no consequence whether, as plaintiff claims, the pipe burst when he tried to tighten the valve in order to stop a small leak, or whether, as defendants claim, plaintiff removed the capping from the pipe in an attempt to perform a hookup that he should have hired a qualified plumber to do. If defendants' account does not itself support a finding for plaintiff ( but, cf., Muhaymin v. Negron, 86 A.D.2d 836, 837), at best it raised an issue of fact for the jury, which was properly instructed to draw an adverse inference against defendants for their failure to produce the piece of pipe that allegedly had a wrench mark on it.
We find the damages award herein does not deviate materially from what is reasonable compensation in these circumstances.
Concur — Sullivan, J.P., Lerner, Mazzarelli and Saxe, JJ.