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Savory v. 2120 Realty Co. LLC

March 3, 2009

IRIS SAVORY, AS ADMINISTRATRIX OF THE ESTATE OF CARMEN GARCIA, ETC., PLAINTIFF-RESPONDENT,
v.
2120 REALTY CO. LLC, DEFENDANT-APPELLANT,
BAUER OIL BURNER SERVICES, ET AL., DEFENDANTS. [AND A THIRD-PARTY ACTION]



Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about January 4, 2008, which, to the extent appealed from, denied the motion of defendant 2120 Realty Co. LLC for summary judgment dismissing the complaint against it, reversed, on the law, without costs, the motion granted and the complaint against it dismissed. The Clerk is directed to enter judgment accordingly.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Nardelli, McGuire, Moskowitz, Renwick, JJ.

7154/04 & 83961/04

Plaintiff's decedent, a 58-year-old woman who, due to severe mental infirmities, had the mental capacity of a two year old, lived in an apartment in a building owned by defendant 2120 Realty Co. On August 25, 2003, plaintiff's decedent's home health attendant was giving plaintiff's decedent a warm bath in the apartment's bathroom. While the water was draining from the tub, the health care attendant left the bathroom to turn on an air conditioner in another room of the apartment, leaving plaintiff's decedent in the tub. Decedent opened the hot water faucet while the attendant was out of the bathroom, causing hot water to flow into the tub. Decedent suffered second- and third-degree burns from the hot water, and subsequently died.

Plaintiff, the administrator of decedent's estate, commenced this action against, among others, 2120 Realty, claiming that it negligently permitted the hot water from the bathtub faucet "to reach dangerous and unsafe temperatures." 2120 Realty moved for summary judgment dismissing the complaint against it, arguing that it had no duty to ensure that water from an apartment's bathtub faucet was below a specific temperature. In opposition, plaintiff argued that 2120 Realty had a duty not to send "unreasonably unsafe and excessively hot water into [decedent's] apartment." Plaintiff relied on the affidavit of an engineer who inspected both the bathroom and the building's boiler shortly after the incident. The engineer measured the temperature of the hot water from the bathtub faucet to be 161 degrees and the temperature of the water leaving the boiler to be 168 degrees. The engineer averred that

"Some appliances, such as washing machines and dishwashers, work best with water in excess of 120 degrees. However, water in excess of 120 degrees is not appropriate for bathing as scalding injuries can occur. I opine that domestic hot water should not be sent to kitchen or bathroom fixtures in excess of 120 degrees to prevent burn injuries . . . .

"It is my opinion, within a reasonable degree of engineering certainty, that the subject premises was maintained in a dangerous and hazardous condition [because (1) neither the boiler nor the bathroom had an anti-scalding valve, and (2) 2120 Realty did not practice good hot water management, i.e., it failed to keep domestic hot water log books in the boiler room and placed the hot water temperature gauge on the boiler above eye-level, and] such defects . . . can permit hot water in the . . . premises to reach dangerous and unsafe temperature levels and result in scalding."

Supreme Court, among other things, denied 2120 Realty's motion.*fn1

2120 Realty's only argument on appeal is that, as a matter of law, it had no duty to ensure that hot water from the bathtub faucet was below a specific temperature. 2120 Realty maintains that it was obligated by law to supply hot water to the apartment that was at least 120 degrees; that hot water is not meant to be used for bathing without proper mixing with cold water; and that the temperature of the hot water it supplies must be appropriate for a number of uses, including laundry and cleaning, both of which require water hotter than would be suitable for bathing.

2120 Realty made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint against it on the ground that it had no duty to ensure that the hot water it supplied to decedent's apartment was below a specific temperature. As 2120 Realty correctly notes, it was obligated by the Administrative Code to supply hot water for decedent's bathroom "at a constant minimum temperature of [120] degrees Fahrenheit from a central source of supply" (§ 27-2031), and the temperature of the hot water supplied to decedent's bathtub faucet undisputably exceeded 120 degrees. Moreover, as 2120 Realty correctly notes, "[a] building's maximum hot water is not intended to be at a temperature appropriate for bathing . . . [because] keeping hot water in excess of 120 degrees (as required by Administrative Code § 27-2031) aids in killing certain microorganisms when washing dishes or clothing" (Williams v Jeffmar Mgt. Corp., 31 AD3d 344, 347 [2006]). Thus, the burden shifted to plaintiff to raise an issue regarding whether 2120 Realty had a duty to supply hot water to decedent's apartment that was less than 161 degrees, the temperature of the water from the bathtub faucet according to plaintiff's expert.

Plaintiff's engineer asserted that "domestic hot water should not be sent to kitchen or bathroom fixtures in excess of 120 degrees to prevent burn injuries." However, the engineer "cited no authority, treatise, standard, building code, article or other corroborating evidence to support" that assertion (Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9 [2005])*fn2. This is unsurprising because just the opposite is true - 2120 Realty was obligated by Administrative Code § 27-2031 to supply hot water for decedent's bathroom of at least 120 degrees Fahrenheit. Indeed, in Williams we expressly rejected the assertion that hot water supplied to a bathroom faucet cannot exceed 120 degrees (31 AD3d at 346-347). Accordingly, the engineer's assertion that "domestic hot water should not be sent to kitchen or bathroom fixtures in excess of 120 degrees to prevent burn injuries" is conclusory and contrary to both the Administrative Code provision and Williams, and thus lacks any probative force and is insufficient to withstand summary judgment (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; see LaTronica v F.N.G. Realty Corp., 47 AD3d 550, 551 [2008] ["Plaintiff failed to raise a triable issue of fact whether defendants kept the water at an unsafe temperature because this claim is based on the expert's non-probative conclusion that the temperature of the water ranged from 103 to 139 degrees'"]). Accordingly, that conclusory assertion "was insufficient to raise a question of fact as to whether defendant breached its duty to maintain[] [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk'" (Buchholz, 5 NY3d at 8, quoting Basso v Miller, 40 NY2d 233, 241 [1976]).*fn3

Neither Carlos v 395 E. 151st St. LLC (41 AD3d 193 [2007]) nor Lindsey v H.B. Assoc., L.L.C. (24 AD3d 274 [2005]), both cited by the dissent, dictates a different conclusion. Carlos dealt with whether a triable issue of fact existed regarding notice of a hazardous condition; Lindsey, which was decided before Williams, does not discuss the issue of duty.*fn4

The dissent attempts to distinguish Williams on the ground that "there was a significant delay between the accident and the plaintiff's expert's inspection" of the premises. First, nowhere in our decision in Williams did we make such a finding. Rather, we noted that the temperature of the hot water running into the bath was measured by a police detective on the day of the plaintiff's accident. Second, that purported distinction is irrelevant with respect to the determinative issue on this appeal - whether 2120 Realty had a duty to supply hot water ...


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