| Shkolnik v Longo |
| 2009 NY Slip Op 04887 [63 AD3d 819] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Mikhail Shkolnik, Respondent, v Alfonso Longo,Appellant, et al., Defendant. |
—[*1] William Pager, Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Alfonso Longo appealsfrom an order of Supreme Court, Kings County (Held, J.), dated May 8, 2008, which denied hismotion for summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when the water running from the faucet in his bathtubsuddenly became extremely hot, causing serious burns to his ankles and feet. He subsequentlycommenced this action against the owners of the subject building, alleging, among other things,that they were negligent in the maintenance of the boiler and the hot water system, and that therapid fluctuations in water temperature constituted a dangerous condition. The defendantAlfonso Longo, who was one of the owners, moved for summary judgment dismissing thecomplaint insofar as asserted against him, contending that no defective condition existed andthat, in any event, he had no actual or constructive notice of the alleged dangerous condition.The Supreme Court denied the motion, finding that triable issues of fact existed on the issue ofliability. We agree.
In opposition to the appellant's prima facie showing of entitlement to summary judgment, theplaintiff raised a triable issue of fact regarding the existence of a dangerous condition (see Rosencrans v Kiselak, 52 AD3d492 [2008]; Terry v Danisi Fuel OilCo., Inc., 40 AD3d 1072 [2007]). The plaintiff came forward with, inter alia, theaffidavit of Mark Kanevsky, a contractor with experience installing and repairing hot watersystems, who claimed that the building's water was subject to unsafe temperature fluctuationswithout a "mixing valve" installed on the boiler (see Terry, 40 AD3d at 1073).
The plaintiff also raised a triable issue of fact as to whether the appellant had actual notice ofthe alleged defective condition by submitting evidence that, "a minimum of three times" beforehe was injured, he complained that the water would suddenly change from cold to hot (see Aguirre v Paul, 54 AD3d 302,303 [2008]). Spolzino, J.P., Skelos, Santucci and Dickerson, JJ., concur.