| Rashid v Clinton Hill Apts. Owners Corp. |
| 2010 NY Slip Op 01631 [70 AD3d 1019] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Hafiza Rashid et al., Respondents, v Clinton HillApartments Owners Corp. et al., Defendants, and Time Equities, Inc.,Appellant. |
—[*1] Annette G. Hasapidis, South Salem, N.Y., for respondents.
In an action to recover damages for personal injuries, the defendant Time Equities, Inc.,appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Solomon, J.), dated March 5, 2009, as denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs, mother and son, are tenants of a cooperative apartment owned by thedefendant Time Equities, Inc. (hereinafter Time Equities). The defendant Clinton HillApartments Owners Corp. owns the buildings where the apartment is located. The defendantsMark Greenberg Real Estate Co. Inc., and Mark Greenberg Real Estate Co., LLC (hereinaftertogether MGRE), manage the apartment complex. On several occasions between 2002 and 2005,the plaintiffs noticed water leaking into their apartment and also noticed mold in the apartment.On each occasion they complained to MGRE representatives, and on each occasion the roofabove their apartment was repaired, until, in 2005, it was replaced. The plaintiffs brought thisaction alleging that they sustained personal injuries as a result of the mold in their apartment.
Time Equities moved for summary judgment dismissing the complaint insofar as assertedagainst it on the grounds that it did not have notice of the allegedly hazardous condition, and thatthe alleged mold was not the proximate cause of the plaintiffs' injuries. The Supreme Courtdenied the motion, and Time Equities appeals.
A landlord has a duty to maintain its premises in a reasonably safe condition (see Ruiz vHart Elm Corp., 44 AD3d 842, 843 [2007]; Lewis v Drake, 295 AD2d 482 [2002];Cupo v Karfunkel, 1 AD3d 48, 51 [2003]). A landlord moving for summary judgment ina premises liability case "has the initial burden of establishing that it did not create the defectivecondition or have actual or constructive notice of its existence for a sufficient length of time todiscover and remedy it" (Goldenfeld v Euro Comfort Furniture, Inc., 48 AD3d 515,515-516 [2008]). Here, Time Equities failed to establish, prima facie, that it did [*2]not have notice of the presence of mold in the plaintiffs' apartment.Moreover, in opposition to Time Equities' prima facie showing that the existence of mold wasnot the proximate cause of the plaintiffs' personal injuries, the plaintiffs raised a triable issue offact by submitting the report of their expert, Dr. Irene Grant, who opined that the mold causedtheir injuries. In light of the conflicting expert opinions, the Supreme Court properly deniedTime Equities' motion for summary judgment dismissing the complaint insofar as assertedagainst it (see Lopez v Gem Gravure Co., Inc., 50 AD3d 1102, 1102 [2008]; Barbutov Winthrop Univ. Hosp., 305 AD2d 623, 624 [2003]; Zarzana v Sheepshead BayObstetrics & Gynecology, 289 AD2d 570, 571 [2001]). Santucci, J.P., Dickerson, Chambersand Sgroi, JJ., concur.