| Utkan v Szuwala |
| 2009 NY Slip Op 01794 [60 AD3d 755] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Deniz Efe Utkan, Respondent, v Jenina Szuwala et al.,Appellants. |
—[*1] Falk & Klebanoff, West Hempstead, N.Y. (Jeffrey P. Falk of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Schack, J.), dated January 11, 2008, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
This action was commenced to recover damages for personal injuries after the infant plaintiffallegedly was burned by an exposed radiator in an apartment owned by the defendants. Thecomplaint alleged that the defendants were aware that the infant plaintiff was in the apartment,that his mother had complained on prior occasions about the infant plaintiff being burned by theradiator, and that she had requested radiator covers. The defendants moved to dismiss thecomplaint pursuant to Rivera v NelsonRealty, LLC (7 NY3d 530 [2006]). The Supreme Court denied the motion. We reverse.
In Rivera v Nelson Realty, LLC (7 NY3d at 532), which was decided on analogousfacts, the Court of Appeals held that "the landlord of a home where children live does not have acommon-law or other duty to provide or install radiator covers." The Court reasoned as follows:"Plaintiffs do not claim that the radiator that injured [the infant plaintiff] needed repair, or wasdefective in any way. Plaintiffs' claim is that an uncovered radiator in good working order,though not a hazard in a home occupied only by adults, is dangerous to children. No duty toremedy this alleged hazard is imposed by the Multiple Dwelling Law or arises under [*2]common law by virtue of the lease. Accordingly, any duty toprotect children from uncovered radiators remains that of the tenant, unless some other statute orregulation imposes it on the landlord. The decision whether radiator covers must be supplied bylandlords is thus left to legislators and regulators, who are in the best position to balance theharm prevented by this safety measure against its cost—a cost which, if imposed onlandlords, becomes part of the overall cost of rental housing." (Rivera v Nelson Realty,LLC, 7 NY3d at 535-536 [citations omitted].) Here, the plaintiff does not argue that anystatute or regulation imposes a duty on the defendants to protect children from uncoveredradiators. Rather, it is argued that Rivera may be distinguished because the lease herecontains a provision warranting that the premises were "fit for habitation" and that there were"no conditions dangerous to health, life or safety." However, the lease provision cited merelytracks the language of Real Property Law § 235-b, the breach of which does not providean alternative cause of action to recover damages for personal injuries (see Barragan vMathai, 253 AD2d 508 [1998]; Stone v Gordon, 211 AD2d 881 [1995]). Thus, theprovision does not provide a viable basis to distinguish Rivera. Accordingly, thedefendants' motion for summary judgment dismissing the complaint should have been granted.Spolzino, J.P., Ritter, Miller and Balkin, JJ., concur.