| Livichusca v M & T Mtge. Co. |
| 2008 NY Slip Op 02799 [49 AD3d 822] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Alberto Livichusca, Respondent, v M & T Mortgage Co.,Appellant, et al., Defendant. |
—[*1] Charles Zolot, Jackson Heights, N.Y., for respondent.
In an action to recover for damage to property, the defendant M & T Mortgage Co., appealsfrom an order of the Supreme Court, Kings County (Jacobson, J.), dated March 12, 2007, whichdenied those branches of its motion which were to dismiss the complaint insofar as assertedagainst it pursuant to CPLR 3211 (a) (5) and (7) and granted the plaintiff's cross motion pursuantto CPLR 3025 (b) for leave to serve an amended complaint.
Ordered that the order is affirmed, with costs.
In March 2001 the plaintiff acquired the premises known as 3152 Fulton Street in Brooklyn.Between January 23, 2003 and March 9, 2005, the appellant owned the adjoining parcel of realproperty known as 3154 Fulton Street.
On April 18, 2006 the plaintiff commenced this action against, among others, the appellant,alleging a negligence cause of action for damage to property. The plaintiff's complaint allegedthat "commencing in 2001 and continuing thereafter," the owners of the building located at 3154Fulton Street, including the appellant, failed to clean the gutters which caused an accumulation ofice and water on the roof to ultimately run off into the plaintiff's basement, causing propertydamage.
The appellant moved to dismiss the complaint insofar as asserted against it pursuant to CPLR3211 (a) (5) and (7) on the grounds that the complaint was time-barred and failed to state a causeof [*2]action. The appellant contended that the property damageclaim against it accrued in 2001 when the water damage commenced. The plaintiff cross-movedpursuant to CPLR 3025 (b) for leave to amend the complaint. The proposed amended complaintincluded allegations that the appellant failed to maintain the gutters at 3154 Fulton Street inDecember 2004, that the appellant violated Administrative Code of the City of New York§ 27-2027, and that melting snow and ice from the appellant's building ran off into theplaintiff's basement causing damage. The Supreme Court denied the appellant's motion andgranted the plaintiff's cross motion. We affirm.
The appellant did not own the building at 3154 Fulton Street in 2001. Any duty of theappellant to maintain the building must be predicated upon the appellant's ownership, occupancy,control, or special use of the property (see Cabales v Little League of Islips, 292 AD2d329 [2002]). Therefore, no cause of action for negligence could have accrued in favor of theplaintiff against the appellant in 2001 because the appellant did not owe the plaintiff any duty ofcare at that time (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). Theplaintiff's action, to the extent it seeks to recover for property damage which occurred in 2004during the appellant's ownership of the building, was timely commenced (see CPLR 214[4]).
The Supreme Court properly exercised its discretion in granting the plaintiff leave to amendthe complaint (see Comsewogue UnionFree School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523 [2005]). Theproposed amended complaint sufficiently stated a cause of action sounding in common-lawnegligence, causing property damage. Additionally, a violation of Administrative Code §27-2027 may be considered by the trier of fact as some evidence of negligence by the appellantand in support of the plaintiff's common-law negligence cause of action to recover for damage toproperty (see White v Jeffco W. Props., 304 AD2d 824 [2003]).
The appellant's remaining contentions are without merit. Lifson, J.P., Ritter, Florio andCarni, JJ., concur.