| Scholtz v Catholic Health Sys. of Long Is., Inc. |
| 2010 NY Slip Op 00948 [70 AD3d 808] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Lisa Scholtz, Respondent, v Catholic Health System ofLong Island, Inc., Appellant, et al., Defendant. |
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In an action to recover damages for personal injuries, the defendant Catholic Health Systemof Long Island, Inc., appeals from so much of an order of the Supreme Court, Suffolk County(Kerins, J.), dated October 20, 2008, as denied that branch of its motion which was for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, a resident of an apartment complex known as the Siena Village, which wasowned by the defendant Catholic Health System of Long Island, Inc. (hereinafter CHSLI),allegedly sustained second and third degree burns to her feet when the water running from thefaucet in her bathtub suddenly became excessively hot. At the time, the plaintiff, who sufferedfrom spina bifida, was quadriplegic but had full sensation in her legs. She was attempting to takea bath with the assistance of her personal care aid, the defendant Joanne Stoakes, when theaccident occurred.
According to the plaintiff, Stoakes followed her instructions by checking the temperature ofthe few inches of standing water and the water running from the faucet by placing her handsunder the faucet and into the tub a few times before lowering the plaintiff into the tub. When theplaintiff's feet entered the water near the faucet, she felt pain and saw redness in her feet. Theplaintiff stated that for a few years prior to the accident, she had complained to thesuperintendent of the building during each annual inspection of her apartment that thetemperature of the running water suddenly and randomly fluctuated and became excessively hot.
Stoakes stated that the plaintiff never told her to check the temperature of the water. Stoakesdid not remember whether she tested the temperature of the water with her hands beforelowering the plaintiff into the bathtub. She believed that one of her feet was in the tub for acouple of seconds before she lowered the plaintiff into the tub and found it to be fine.
The building superintendent stated that the plaintiff never complained to him that the [*2]temperature of the water fluctuated and became excessively hot. Hestated that if the plaintiff had made such a complaint, he would have noted it in his inspectionreport. His review of the inspection reports showed that no such notations were made.
The Supreme Court properly denied that branch of CHSLI's motion which was for summaryjudgment dismissing the complaint insofar as asserted against it. Under the circumstances, issuesof credibility exist, and present triable issues of fact as to whether CHSLI properly maintained itswater heating system and had actual notice of the alleged hazardous condition (see generally Shkolnik v Longo, 63AD3d 819 [2009]). Contrary to CHSLI's contention, it failed to establish, prima facie, thatStoakes' alleged negligent conduct was the sole proximate cause of the plaintiff's injuries (seeDerdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Rivera v City of NewYork, 11 NY2d 856, 857 [1962]; Hoang v Man Chong Wong, 49 AD3d 694 [2008]; Williams v Jeffmar Mgt. Corp., 31AD3d 344, 345 [2006]).
CHSLI's remaining contention is without merit. Skelos, J.P., Covello, Balkin and Austin, JJ.,concur. [Prior Case History: 21 Misc 3d 1126(A), 2008 NY Slip Op 52236(U).]