Esdaille v Whitehall Realty Co.

2008 NY Slip Op 02876 [50 AD3d 251]

April 1, 2008

Appellate Division, First Department

As corrected through Wednesday, June 18, 2008

Milca Esdaille, Individually and as Mother and Natural Guardian ofAlanna Vaughns, an Infant, Plaintiff, v Whitehall Realty Company et al., Respondents.Milca Esdaille, Individually and as Mother and Natural Guardian of Alanna Vaughns, an Infant,Respondent, v Whitehall Tenants Corp. et al., Appellants.

—[*1]Garcia & Stallone, Melville (Eric N. Bailey of counsel), for appellants.

Thomas D. Hughes, New York (Richard C. Rubinstein of counsel), for Whitehall RealtyCompany and Hampton Management Company, respondents.

Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for Milca Esdaille,respondent.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered January 18, 2007,which, insofar as appealed from, in an action for personal injuries resulting from an apartmentfire, denied defendants-appellants' motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.

Appellants, the owner and managing agent of the subject building, failed to meet their initialburden of establishing a prima facie entitlement to summary judgment. Appellants failed toaddress two of the grounds for liability put forth by plaintiffs, i.e., that the smoke detector in theapartment was not maintained in proper working order and that the window guards had beennegligently installed, and although appellants attempted to cure these deficiencies in a replyaffirmation, the motion court properly declined to consider it (see Lumbermens Mut. Cas. Co.v Morse Shoe Co., 218 AD2d 624, 625-626 [1995]). Regarding plaintiffs' remaining theoryof liability, that the wiring in the apartment was negligently maintained, appellants failed toestablish entitlement to judgment as a matter of law through the introduction of competent [*2]evidence in admissible form (see Denicker v Rohan, 236AD2d 359 [1997]; compareButler-Francis v New York City Hous. Auth., 38 AD3d 433 [2007]).

We have considered appellants' remaining contentions and find them unavailing.Concur—Lippman, P.J., Tom, Williams and Acosta, JJ.