| Jackson v City of New York |
| 2008 NY Slip Op 07621 [55 AD3d 546] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Thaddeus Jackson et al., Respondents, v City of New York etal., Appellants. |
—[*1] Wingate, Russotti & Shapiro, LLP, New York, N.Y. (Scott A. Stern of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order ofthe Supreme Court, Kings County (Schmidt, J.), dated May 21, 2007, which denied their motion forsummary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion for summaryjudgment dismissing the complaint is granted.
The infant plaintiff Thaddeus Jackson (hereinafter Thaddeus) and his mother Zania Jacksoncommenced this action, inter alia, to recover damages for injuries Thaddeus allegedly sustained when hefell on a chair while playing a game of tag in the plaintiffs' apartment in a building owned by thedefendant City of New York and operated by the defendant Women in Need, Inc. The plaintiffsalleged that the defendants negligently provided unsafe furniture in the apartment and allowed too manytenants to inhabit the apartment.
Contrary to the defendants' contention, the City is not entitled to immunity from negligence claimswhen such claims arise from the City's performance of its duties in its proprietary capacity as a landlord(see Miller v State of New York, 62 NY2d 506 [1984]). Instead, when the City owns abuilding in which people live, it is subject to the same principles of tort law as a private landlord(id.).[*2]
To hold a landlord liable for a hazardous condition upon itsproperty, a plaintiff must show that the landlord either created the condition or had actual orconstructive notice of its existence (seePlakstis v Lighthouse, LLC, 37 AD3d 573 [2007]). Additionally, a landlord is not liable to atenant for dangerous conditions on leased premises absent a duty to repair imposed by statute,regulation, or contract (see Rivera v NelsonRealty, LLC, 7 NY3d 530 [2006]).
Here, the defendants established their prima facie entitlement to judgment as a matter of law bydemonstrating that they did not breach their duty because no dangerous condition existed within theapartment, in light of the fact that the chair was not defective (id.). Moreover, the defendantsdemonstrated that Thaddeus's own behavior in choosing to play tag inside the plaintiffs' apartment wasthe proximate cause of his injuries (see Sheehan v City of New York, 40 NY2d 496 [1976]).In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the defendants are entitledto summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d557 [1980]).
The parties' remaining contentions either are without merit or have been rendered academic in lightof our determination. Spolzino, J.P., Florio, Miller and Leventhal, JJ., concur.