NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
March 3, 2009
IRIS SAVORY, AS ADMINISTRATRIX OF THE ESTATE OF CARMEN GARCIA, ETC., PLAINTIFF-RESPONDENT,
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  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 ). 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 )*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 ; see LaTronica v F.N.G. Realty Corp., 47 AD3d 550, 551  ["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 ).*fn3
Neither Carlos v 395 E. 151st St. LLC (41 AD3d 193 ) nor Lindsey v H.B. Assoc., L.L.C. (24 AD3d 274 ), 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 to decedent's apartment that was less than 161 degrees, the temperature of the water from the bathtub faucet according to plaintiff's expert.
The dissent also asserts that Williams is distinguishable because in that case " [n]othing in plaintiff's submissions permit[ted] a finding . . . that a maximum setting of 140 degrees is unsafe'" (quoting Williams, 31 AD3d at 346-347), and here "plaintiff's expert found . . . that the water emanating from plaintiff's hot water tap was in excess of 160 degrees and that a review of the Dr Katcher JAMA skin burn chart reveals that . . . in the 160°F domestic hot water range there is instantaneous scalding with resultant burn injuries'" (quoting plaintiff's engineer's report). This is unsupported. Plaintiff's engineer neither provided the chart to which he referred in the report nor identified the contents of that chart. The dissent asserts that the engineer "attached this chart to his Report of Findings' in the motion court." That chart, however, is not in the record on appeal. Assuming that the dissent is correct that it was before the motion court, the dissent cannot reasonably fault us for not considering a document that plaintiff failed to ensure was in the record on appeal.
Moreover, the dissent severs that snippet of our holding in Williams from further observations that demonstrate that Williams is not distinguishable from this case. Specifically, we held as follows:
"Nothing in plaintiff's submissions permits a finding that a building's hot water mixing valve must be set at a maximum of 120 degrees, or that a maximum setting of 140 degrees is unsafe. A building's maximum hot water is not intended to be at a temperature appropriate for bathing. Indeed, as defendant's expert pointed out, 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.
"Moreover, a certain amount of temperature fluctuation must be expected. Just as it would be unreasonable for a tenant to assume that the temperature of water emerging from the hot water tap alone is safe for bathing, so would it be unreasonable to assume that the water's temperature upon first turning the taps will remain unchanged a minute or two later. People using hot water, especially when bathing infants and toddlers, must be expected to monitor the mixture of hot and cold water to ensure a temperature that is safe for bathing. A landlord cannot be required to adjust the hot water temperature in order to protect children from adults who fail to do so" (31 AD3d at 346-347).
What we said in Williams of people bathing infants and toddlers is equally true of people bathing the handicapped. The assertion of plaintiff's engineer that "domestic hot water should not be sent to kitchen or bathroom fixtures in excess of 120 degrees to prevent burn injuries" is materially indistinguishable from the assertion of the plaintiff's expert in Williams that "absent negligence, water above 120 degrees Fahrenheit should not have been discharged into the hot water system and apartments," which we characterized as "bare" and found to be insufficient to withstand summary judgment. The dissent fails to acknowledge (let alone address) the above-quoted portions of the reasoning in Williams.
At bottom, pursuant to Williams, no issue exists 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.
All concur except Moskowitz and Renwick, JJ. who dissent in a memorandum by Moskowitz, J. as follows:
MOSKOWITZ, J. (dissenting)
I disagree with the majority and would affirm the motion court's order.
Plaintiff's mentally handicapped decedent sustained fatal second- and third-degree burns as a result of scalding water coming from her bathtub faucet. When her caretaker left her alone in the bath, decedent apparently turned on the hot water tap herself and sustained fatal injuries. Plaintiff, decedent's sister, sued the landlord of the building claiming that its negligence caused decedent's injury and subsequent death.
After discovery, defendant landlord moved for summary judgment on the grounds that it had no notice of any allegedly defective condition and no duty to ensure that the water that came into decedent's apartment was below a certain temperature. The motion court ruled that defendant had no duty under relevant statutes to install bath or shower control valves because the building was built prior to 1997 and that there were issues of fact whether defendant had notice of the apartment bath water being too hot. In so holding, the motion court appears to have assumed that defendant had a general duty to ensure that the water coming into the apartment was not too hot.
Defendant appealed solely on the ground that it owed no duty to keep the water temperature at a level where it would not cause burns. Defendant claims that water emanating from a hot water tap is not intended for bathing without mixing with cold water and that it is up to the tenant to ensure that the mix is appropriate for bathing. The majority agrees with defendant.
Defendant's contention that it had no duty to ensure that the water temperature was at a level where it would not cause burns is incorrect (see e.g. Rosencrans v Kiselak, 52 AD3d 492, 493 [2nd Dept 2008]; Carlos v 395 E. 151 St., LLC, 41 AD3d 193, 196 [1st Dept 2007]; Lindsey v HB Assoc, LLC, 24 AD3d 274 [1st Dept 2005]; Parker v New York City Hous. Auth., 203 AD2d 345, 346 [2nd Dept 1994]). That duty is part of the responsibility of an owner of residential property to maintain the premises in a reasonably safe condition (Rosencrans, 52 AD3d at 492). Recent regulations imposing on a landlord an obligation to install shower temperature control valves equipped with high-limit stops adjusted to a maximum hot water setting of 120 degrees, (see Administrative Code §§ 27-897, 27-901) are irrelevant and inapplicable, as the motion court found.
Defendant failed to make a prima facie showing that it is entitled to summary judgment. Because it proceeded from an incorrect assumption that it has no duty whatsoever as a matter of law to ensure that the water is not scalding, defendant never offered anything concerning what it did to fulfill that duty. Defendant never provided evidence that it acted as a reasonable landlord would have under the circumstances by, for instance, providing information about its procedures for periodically checking the temperature gauge on the boiler. Rather, defendant's own witness, the building's managing agent for the past 21 years, testified that there was no employee who was responsible for checking the water on a daily basis. Nor was there a hot temperature log book in the boiler room. Defendant did have a maintenance company come in three times a year to service the oil burner, but that company claims it "never adjusted, checked, had anything to do with any water temperature going up into the building."
Plaintiff submits sufficient evidence to support her position that defendant violated its duty to maintain the premises in a safe condition. Plaintiff's expert, who conducted inspections of decedent's bathroom and the building's boiler shortly after the accident, found that the temperature of the hot water distributed from the boiler and emanating from decedent's bathtub faucet was above 160 degrees and that this temperature would cause instant burn injuries. Defendant does not contest this. Thus, this raises an issue of fact as to defendant's negligence in maintaining the hot water system (see Lindsey, 24 AD3d 274 [whether defendant was negligent in maintaining building's hot water system was issue for trial where affidavit from infant plaintiff's treating physician concluded that the water temperature must have been approximately 150 degrees to have caused burns]).
Given the absence of any evidence that defendant conducted periodic inspections to check, inspect or regulate the water distributed from its boiler, questions exist regarding whether defendant exercised the reasonable care a residential apartment building owner should exercise to maintain the water heater in a safe condition with respect to the temperature of the water originating from it. Even if plaintiff's expert's opinion was conclusory as to a landlord's duty to monitor temperatures, it would not matter, because plaintiff does not have the initial burden on this motion. We note that whether the failure of decedent's caretaker to supervise her in the bath was a superseding cause of the accident that relieves the defendant of liability for negligence in maintaining the building's hot water system is also an issue of fact (id.).
The cases defendant cites, primarily LaTronica v F.N.G. Realty Corp. (47 AD3d 550 ) and Williams v Jeffmar Mgt. Corp. (31 AD3d 344 , lv denied 7 NY3d 718 ), are unavailing. In LaTronica, plaintiff's expert inspected plaintiff's bathroom two years after the incident and concluded that a temperature between 130 to 139 degrees was unsafe, a conclusion we rejected as "non-probative" citing Williams. Here, plaintiff's expert inspected plaintiff's bathroom and the boiler shortly after the incident, the boiler was in the same condition when the expert inspected as it was at the time of the incident, and a few days after the incident, defendant received what it understood was a restraining order restricting access to the boiler room.
Williams is distinguishable because in that case "[n]othing in plaintiff's submissions permit[ted] a finding . . . that a maximum setting of 140 degrees is unsafe" (31 AD3d at 346-347). Here, however, plaintiff's expert found soon after the incident that the water emanating from plaintiff's hot water tap was in excess of 160 degrees and that "a review of the Dr Katcher JAMA skin burn chart reveals that . . . in the 160°F domestic hot water range there is instantaneous scalding with resultant burn injuries." Plaintiff's expert attached this chart to his "Report of Findings" in the motion court. Moreover, in Williams, as in LaTronica, there was a significant delay between the accident and the plaintiff's expert's inspection.
Defendant does not argue lack of notice in its briefs on this appeal. It merely contends that notice is irrelevant because there was no duty. Therefore, we do not need to reach the issue. However, were we to reach it, we would agree with the motion court that plaintiff has raised a triable issue of fact as to notice.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.