Williams v. Jeffmar Mgt. Corp.

Full title: TYRESE WILLIAMS, an infant under 14 years by his mother and natural…

Court: Supreme Court of the State of New York, Bronx County

Date published: Oct 28, 2005

2005 N.Y. Slip Op. 52271 (N.Y. Sup. Ct. 2005)

815 N.Y.S.2d 496

Opinion

7433/2003.

Decided October 28, 2005.

Patrick Daniel Gatti Esq., Segal Lax, New York, NY, For Defendant and Second Third-Party Plaintiff.

Sheri Holland Esq., White Fleischner Fino, LLP, New York, NY, For Second Third-Party Defendant.

Samuel Grossman Esq., Fresh Meadows, NY, For Plaintiffs.

LUCY BILLINGS, J.

I. BACKGROUND

Plaintiffs sue to recover for injuries sustained by the child Tyrese Williams June 25, 2002, when he was burned by bathtub water in defendant Jeffmar Management Corporation's building in Bronx County. Jeffmar Management commenced a third-party action for indemnification against plaintiff Graham, the child's mother, alleging that her conduct caused plaintiff Williams's injuries. Jeffmar Management moves for summary judgment dismissing the complaint in the main action based on defendant's nonliability for plaintiffs' injuries. C.P.L.R. § 3212(b).

Jeffmar Management first contends that both plaintiffs are estopped from relitigating Graham's liability for Williams's injuries, because it was determined in a prior criminal action against Graham. Second, Jeffmar Management contends that there was no defect in the building's hot water supply, and in any event defendant lacked actual or constructive notice of such a defect. Finally, Jeffmar Management contends that Graham's acts supersede any negligence on defendant's part.

II. COLLATERAL ESTOPPEL

Collateral estoppel preludes a party from relitigating in a subsequent action an issue raised in a prior action and decided against that party or others in privity with that party. Buechel v. Bain, 97 NY2d 295, 303 (2001). A party invoking collateral estoppel must show that the issue in each action is identical, and the party to be estopped had a full and fair opportunity to litigate the issue. Id. at 304; Matter of Hoffman, 287 AD2d 119, 123 (1st Dep't 2001). A conviction for a criminal offense is conclusive proof of the elements of the offense in a subsequent civil action arising from the same facts and collaterally estops a party from relitigating liability for those acts. Grayes v. DiStasio, 166 AD2d 261, 262-63 (1st Dep't 1990); Lili B. v. Henry F., 235 AD2d 512 (2nd Dep't 1997).

Here, Graham's plea of guilty to second degree assault, NY Penal Law § 120.05(4), and admission during the plea allocution that she placed Williams in water she knew was hot is conclusive proof of her liability for that act in Jeffmar Management's second third-party action against her as second third-party defendant. While Graham's assault conviction, which establishes her recklessness in causing Williams's injuries, also establishes her negligence here, Grayes v. DiStasio, 166 AD2d at 263, her negligence or recklessness, by itself, does not address Jeffmar Management's culpability. Moreover, since Williams was not a party to the criminal action and had no opportunity to litigate any party's culpability in that action, collateral estoppel would not preclude him from litigating Jeffmar Management's liability for his injuries. Lindgren v. New York City Hous. Auth., 269 AD2d 299, 302 (1st Dep't 2000); All Terrain Props. V. Hoy, 265 AD2d 87, 92 (1st Dep't 2000); Montgomery County Socy. for Prevention of Cruelty to Animals v. Bennett-Blue, 255 AD2d 705, 706-707 (3rd Dep't 1998).

Even finding Graham negligent in the main action along with Jeffmar Management, allowing apportionment of liability between the two parties, would be impermissible, because the plaintiff child may not claim negligent supervision against his parent. Rios v. Smith, 95 NY2d 647, 651 (2001); Holodook v. Spencer, 36 NY2d 35, 51 (1974); Deshler v. East W. Renovators, 275 AD2d 252, 253 (1st Dep't 2000). Similarly, Graham's contributory negligence may not be imputed to her child. NY Gen. Oblig. Law § 3-111.

Excluding the issue of Graham's negligence in the main action on her child's behalf, however, does not affect Jeffmar Management's second third-party action, which seeks indemnification from Graham based on conduct by her that is actionable independent of the parent-child relationship. Barocas v. F.W. Woolworth Co., 207 AD2d 145, 149 (1st Dep't 1995); Young v. Greenberg, 181 AD2d 492 (1st Dep't 1992); Hoppe v. Hoppe, 281 AD2d 595, 596 (2nd Dep't 2001); Alharb v. Sayegh, 199 AD2d 229, 230 (2nd Dep't 1993). In the second third-party action, in contrast to here in the main action, Graham is collaterally estopped from relitigating her own negligence. State of New York v. Prince, 222 AD2d 326, 327 (1st Dep't 1995); Lili B. v. Henry F., 235 AD2d at 512.

III. JEFFMAR MANAGEMENT'S NOTICE OF A DEFECTIVE CONDITION

For defendant building owner to be liable for a defect in defendant's premises that defendant did not create, plaintiffs must show that defendant had actual or constructive notice of the defective condition. Golden v. Manhasset Condominium, 2 AD3d 345, 347 (1st Dep't 2003); Dunaif v. Alrose Holding Co., 299 AD2d 159 (1st Dep't 2002). Thus, at trial, plaintiffs bear the ultimate burden to establish that defendant had actual or constructive notice of a defect in the hot water supply to the building's bathtubs that foreseeably could cause a burn, but never repaired the condition before it resulted in plaintiff Williams's injury. Figueroa v. Goetz, 5 AD3d 164, 165 (1st Dep't 2004). On defendant's summary judgment motion, however, defendant bears the initial burden to show that defendant lacked notice of that condition. George v. New York City Tr. Auth., 306 AD2d 160, 161 (1st Dep't 2003); Showverer v. Allerton Assoc., 306 AD2d 144 (1st Dep't 2003); Bonifacio v. 910-930 S. Blvd., 295 AD2d 86, 91 (1st Dep't 2002); Giuffrida v. Metro N. Commuter R.R. Co., 279 AD2d 403, 404 (1st Dep't 2001). See D'Ambra v. New York City Tr. Auth., 16 AD3d 101 (1st Dep't 2005); Arnold v. New York City Hous. Auth., 296 AD2d 355 (1st Dep't 2002); Frank v. Time Equities, 292 AD2d 186, 187 (1st Dep't 2002). The evidence from Jeffmar Management's own witnesses fails to demonstrate the absence of excessively hot water flowing to apartments in the building, of which defendant had or should have had notice.

A. The Defective Condition According to the Landlord's Own Witnesses

John Wissing, Jeffmar Management's president, testified in his deposition that the building's boiler produces hot water, which flows to a mixing valve, which mixes the hot water with cold water and then distributes the water to the apartments. He further testified that the temperature of the water from the mixing valve to the apartments ranged from 140 to 160 degrees.

Filberto Cempos, the building superintendent, testified that the building's operating procedures required the maximum temperature of the water to the apartments to be 140 degrees and that the boiler shut off automatically when the water temperature reached 140 degrees. Yet Cempos also testified that the minimum temperature of the water to the apartments was to be 140 degrees and admitted that he never measured the water temperature in the apartments in the two years preceding Williams's injury.

Although both Wissing and Cempos testified that they had received no complaints regarding the water temperature in the building before Williams's injury, both witnesses' testimony that the water temperature exceeded the maximum required by the building's operating procedures demonstrates a defect that Jeffmar Management knew or should have known about. Due to Cempos's admission, moreover, that he never measured the water temperature in the apartments, and the absence of any other evidence of inspections to assure that bathtub temperatures did not exceed the maximum, defendant further fails to satisfy its burden on this summary judgment motion to show lack of notice. George v. New York City Tr. Auth., 306 AD2d at 161; Showverer v. Allerton Assoc., 306 AD2d 144; Banks v. Odd Job Trading Corp., 299 AD2d 248, 249 (1st Dep't 2002).

In reply, Jeffmar Management presents the affidavit of Jim Bluet, vice president of OAS, Inc., which maintained computer printouts regarding the temperature of the water entering and leaving the mixing valve in defendant's building. According to Bluet, the printout for June 25, 2002, the date Williams was burned, indicates the temperature of the water to the apartments reached as high as 143 degrees and between 2:00 p.m. and 4:00 p.m. that day, the period when Williams was burned, ranged from 128 to 132 degrees. Nowhere in the affidavit or in any other testimony, however, does Bluet or any other witness lay a foundation for this printout's admissibility as a business record or as any other exception to the rule against hearsay. E.g., C.P.L.R. § 4518(a); Holliday v. Hudson Armored Car Courier Serv., 301 AD2d 392, 396 (1st Dep't 2003); People v. Lewis, 284 AD2d 172, 173 (1st Dep't 2001); Insurance Co. of N. Am. v. Gottlieb, 186 AD2d 470, 471 (1st Dep't 1992); Republic W. Ins. Co. v. RCR Bldrs., 268 AD2d 574, 575 (2nd Dep't 2000). See Kupferle v. Deidra Trans., 300 AD2d 192 (1st Dep't 2002). Even if the printout were in admissible form, it still confirms a temperature exceeding the 140 degree maximum for the building on June 25, 2002, albeit at different times than the period when Williams was burned. This evidence of a prior defective condition, shown by continuous records to which Jeffmar Management had access, is enough to demonstrate that defendant did not lack notice of the excessively hot water. See Daughtery v. City of New York, 137 AD2d 441, 444 (1st Dep't 1988).

B. The Defective Condition According to the New York City Building Code

The record of the period when Williams was burned is nonetheless enough to show a defective condition as well. All the temperatures during that two hour period exceed the maximum set by law. New York City Administrative Code §§ 27-897 and 27-901 incorporate the provisions of Reference Standard RS-16 in the code's "minimum requirements for the design, installation, alteration, repair, and maintenance of plumbing systems" in buildings. N.Y.C. Admin. Code § 27-896 (emphasis added). One of these provisions, P107.6(i), pertaining to Water Supply Control Valves, requires that bathtub "water temperature control valves shall be equipped with high-limit stops adjusted to a maximum hot water setting of 120 degrees Fahrenheit."

Violation of the New York City Administrative Code constitutes evidence of negligence. Elliott v. City of New York, 95 NY2d 730, 734, 736 (2001); Cruz v. City of New York, 13 AD3d 254 (1st Dep't 2004); Davis v. HHS Props. Corp., 1 AD3d 153, 154 (1st Dep't 2003). See Gayle v. City of New York, 256 AD2d 541, 542 (2nd Dep't 1998); McSweeney v. Rogan, 209 AD2d 386, 387 (2nd Dep't 1994); Marigliano v. City of New York, 196 AD2d 533, 535 (2nd Dep't 1993); Barnes v. Stone-Quinn, 195 AD2d 12, 14 (4th Dep't 1993). The hot bathtub water that caused Williams's injuries is precisely the type of hazard against which the Reference Standard RS-16 provision P107.6(i) is intended to protect. O'Connor v. City of New York, 58 NY2d 184, 190 (1983); Barnes v. Stone-Quinn, 195 AD2d at 14-15; Sullivan v. Locastro, 178 AD2d 523, 525 (2nd Dep't 1991). See Di Ponzio v. Riordan, 89 NY2d 578, 585 (1997); Myers v. 149 Automotive, 295 AD2d 104, 105 (1st Dep't 2002); Avila v. Rahman NY, 275 AD2d 271, 272 (1st Dep't 2000); Farkas v. Saary, 191 AD2d 178, 180 (1st Dep't 1993). Since the record discloses ample evidence of hot water exceeding 120 degrees flowing from the control valves in Jeffmar Management's building, it is for the fact finder at trial to determine whether, based on all the evidence, Jeffmar Management violated this provision, was negligent, and through that negligence proximately caused Williams's injuries. Callahan v. Maurice Realty, 259 AD2d 264, 265 (1st Dep't 1999); Canela v. Audubon Gardens Realty Corp., 304 AD2d 702, 703 (2nd Dep't 2003); Gayle v. City of New York, 256 AD2d at 542; Barnes v. Stone-Quinn, 195 AD2d at 15-16. See Montoya v. Vasquez, 185 AD2d 875, 876 (2nd Dep't 1992).

C. The Expert Witnesses

Given this evidence, the court need not consider the parties' expert affidavits. In any event, since plaintiffs' expert inspected the hot water flowing to plaintiffs' bathtub in May 2003, and Jeffmar Management's expert conducted his inspections in June and July 2004, without any evidence the conditions were the same as in June 2002, the experts' findings are not probative of the hot water system's operation on the date Williams was burned. Garcia v. Jesuits of Fordham, 6 AD3d 163, 166 (1st Dep't 2004); Figueroa v. Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210 (1st Dep't 1998). To the extent their opinions are based on those belated inspections, the court must disregard the opinions. Machado v. Clinton Hous. Dev. Co., Inc., ___ AD3d ___, 798 NYS2d 56, 57 (1st Dep't 2005); Garcia v. Jesuits of Fordham, 6 AD3d at 166; McGarvey v. Bank of NY, 7 AD3d 431, 432 (1st Dep't 2004); Figueroa v. Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210.

To the extent these licensed professional engineers express opinions as to the applicable legal standards governing the maximum temperature of bathtub water or their meaning, this testimony impermissibly usurps the court's responsibility to determine and interpret the applicable law. Bucholz v. Trump 767 Fifth Ave., 4 AD3d 178, 179 (1st Dep't 2004), aff'd, 5 NY3d 1 (2005); Measom v. Greenwich Perry St. Hous. Corp., 268 AD2d 156, 159 (1st Dep't 2000); Rodriguez v. New York City Hous. Auth., 209 AD2d 260, 261 (1st Dep't 1994); Ross v. Manhattan Chelsea Assocs., 194 AD2d 332, 333 (1st Dep't 1993). See Newark Val. Cent. School Dist. v. Public Employee Relations Bd., 83 NY2d 315, 320 (1994); LaPenta v. Loca-Bik Ltee Transp., 238 AD2d 913, 914 (4th Dep't 1997). To the extent the experts' findings and opinions regarding the water temperature and its safety differ, they raise credibility issues precluding summary judgment. E.g., Apple v. State of New York, 268 AD2d 398, 400 (2nd Dep't 2000).

D. Application of the 1997 Code Provision to a 1931 Building

As to the applicability of Reference Standard RS-16 provision P107.6(i), effective May 4, 1997, Jeffmar Management contends that because its building was constructed in 1931, applying this provision to the building would give the provision unauthorized retroactive effect. Retroactive application of a code provision "looks backward" and affects conditions or occurrences before it came into force. NY Statutes § 51(a). See People v. Weinberg, 83 NY2d 262, 266 (1994); Allied Grocers Coop. v. Tax Appeals Tribunal, 162 AD2d 791, 792 (3rd Dep't 1990). Here, retroactive application of the 1997 provision would give it effect before May 4, 1997. Giving it effect in 2000, more than three years after its effective date, is not giving the provision retroactive operation. Forti v. New York State Ethics Commn., 75 NY2d 596, 609 (1990). Nor does the 1997 provision operate retroactively when it is applied to a 2000 condition or occurrence related to or founded on a building constructed or a plumbing system installed before 1997, People v. Weinberg, 83 NY2d at 265-66; Forti v. New York State Ethics Commn., 75 NY2d at 609, or when the provision regulates the future use of property already in place. NY Statutes § 51(a); Allied Grocers Coop. v. Tax Appeals Tribunal, 162 AD2d at 792.

Most importantly, the Administrative Code itself mandates application of all building code provisions not only to the "construction, alteration, [or] repair," but also to the "maintenance, occupancy and use" of buildings, and not just new buildings, but "new and existing buildings." N.Y.C. Admin. Code § 27-103. This mandate, combined with § 27-896's application of the specific requirements for building plumbing systems to their maintenance as well as their repair and alteration, leaves no question as to RS-16 provision P107.6(i)'s applicability to Jeffmar Management's building constructed in 1931.

In fact, to exempt the water temperature in Jeffmar Management's 1931 building from a 1997 code provision would defy both logic and defendant's own evidence. Surely the building's boiler, which Jeffmar Management's president testified produced the hot water, could be regulated to produce less heat, consistent with the superintendent's testimony that the boiler could be shut off at a set point. Surely the building's plumbing could be regulated to produce less hot water or more cold water flowing separately to the mixing valve, which mixed the two sources of water before distributing it. If the building instituted operating procedures setting a maximum water temperature, as the superintendent testified, then surely those standards could be modified to set lower maximums. If operations cannot be modified, to comport with current procedures, or procedures cannot be modified to dictate different operations, the procedures serve no purpose. Measuring the water temperature serves no purpose; the meticulous computerized tracking of water temperature by OAS is completely pointless.

Carrying Jeffmar Management's position concerning the 1997 code provision to that position's logical conclusion would exempt buildings constructed before the advent of indoor plumbing from any such advances in science or engineering technology or use of modern fixtures or equipment essential to health and safety. This result, too, would contravene the Administrative Code's express purpose applicable to all building code requirements, that they be

based upon current scientific and engineering knowledge, experience and techniques, and the utilization of modern machinery, equipment, materials, and forms and methods of construction, . . . in the interest of public safety, health and welfare.

N.Y.C. Admin. Code § 27-103. See, e.g., O'Connor v. City of New York, 58 NY2d at 190. In sum, the New York City Administrative Code Reference Standard RS-16 provision P107.6(i) governs the plumbing system in Jeffmar Management's 1931 residential building.

IV. SUPERSEDING CAUSE

Last, Jeffmar Management contends that Graham's reckless act is the sole cause of Williams's injuries. An intervening act is a superseding cause severing Jeffmar Management's liability if the act is so extraordinary or attenuated from defendant's own negligence as to have been unforeseeable. Egan v. A.J. Constr. Corp., 94 NY2d 839, 841 (1999); Kriz v. Schum, 75 NY2d 25, 36 (1989); Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315 (1980); Emanuel v. Sheridan Transp. Corp., 10 AD3d 46, 57 (1st Dep't 2004). For Jeffmar Management to be entitled to summary judgment based on Graham's intervening reckless act being a superseding cause, her act must have been both reckless and unforeseeable as a matter of law. Boltax v. Joy Day Camp, 67 NY2d 617, 620 (1986); Emanuel v. Sheridan Transp. Corp., 10 AD3d at 58; Sullivan v. 673 First Ave. Assocs., 250 AD2d 394, 395 (1st Dep't 1998).

Despite the conclusive evidence of Graham's recklessness, admitted by her guilty plea, the evidence of excessively hot water flowing to Jeffmar Management's apartments at minimum raises a material issue whether Jeffmar Management could have foreseen a tenant permitting herself or her child to be burned by that water. Similarly, the evidence raises an issue whether Graham's act in fact flowed from Jeffmar Management's negligence. Perez v. New York City Hous. Auth., 212 AD2d 379, 380 (1st Dep't 1995); Shutak v. Handler, 190 AD2d 345, 347 (1st Dep't 1993).

If a tenant being burned may have been a foreseeable result of excessively hot bathtub water, as the evidence indicates, Graham's conduct permitting her child to be exposed to such water would be neither extraordinary nor attenuated from the owner's negligence. Consequently, it remains for the fact finder at trial to determine whether the hazard was a foreseeable consequence of Jeffmar Management's failure to regulate the water temperature. Emanuel v. Sheridan Transp. Corp., 10 AD3d at 58; Shutak v. Handler, 190 AD2d at 348. If such a hazard was foreseeable, Graham's intervening recklessness did not sever the causal connection between Jeffmar Management's failure and Williams's injury. Derdiarian v. Felix Contr. Corp., 51 NY2d at 315-16. Therefore her conduct does not, as a matter of law, supersede and negate the owner's responsibility to maintain plaintiffs' apartment in a safe condition, in compliance with the building code.

V. CONCLUSION

For the above reasons, the court denies Jeffmar Management's motion for summary judgment based on collateral estoppel, lack of notice of a defective condition, and a superseding cause. C.P.L.R. § 3212(b).