| Carter v Grenadier Realty |
| 2011 NY Slip Op 02828 [83 AD3d 640] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Kintavia Carter et al., Respondents, v Grenadier Realty etal., Appellants. |
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In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Solomon, J.), dated February 2, 2010, which deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
Talia Collins (hereinafter the plaintiff) commenced this action on behalf of her daughter,Kintavia Carter (hereinafter the infant plaintiff), and on her own behalf, against Grenadier Realty(hereinafter Grenadier) and Howland Hook Housing Co., Inc. (hereinafter Howland) (hereinaftertogether the defendants), to recover damages for injuries sustained by the infant plaintiff in a firethat occurred in their apartment. The apartment was located in an apartment building owned byHowland and managed by Grenadier. The plaintiff alleged, among other things, that thedefendants failed to provide her with a working smoke detector.
The Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint. The defendants demonstrated their prima facie entitlement to judgmentas a matter of law by presenting, inter alia, the deposition testimony of Grenadier's propertymanager and assistant building superintendent that a new working smoke detector was installedin the apartment before the plaintiff moved in, as required by section 27-2045 (a) (1) of theAdministrative Code of the City of New York (see Amble v City of New York, 157AD2d 688, 689 [1990]). In opposition, however, the plaintiff raised a triable issue of fact as towhether the smoke detector was operational when it was installed, through her affidavit stating,inter alia, that the device never worked while she lived in the apartment. Contrary to thedefendants' contention, the plaintiff's affidavit was not inconsistent with her deposition testimonyand, thus, did not constitute an attempt to create a feigned issue of fact (see Gleason v City of New York, 68AD3d 1054, 1056 [2009]). The plaintiff also raised a triable issue of fact as to whether thedefendants breached a duty to her by removing the allegedly inoperable smoke detector from theapartment. Although section 27-2045 of the Administrative Code of the City of New Yorkprovides that it is an occupant's sole duty to maintain and replace a smoke detector (seeAdministrative Code of City of NY § 27-2045 [b], [c]), it is also true that, "even [*2]when no duty exists, once a person voluntarily undertakes to act[,]he must do so with due care" (McIntosh v Moscrip, 138 AD2d 781, 783 [1988]; seegenerally Parvi v City of Kingston, 41 NY2d 553, 559 [1977]). Here, the plaintiff presentedevidence that, upon her complaint, the defendants affirmatively removed the smoke detector andpromised to replace it but failed to do so prior to the fire.
Furthermore, in response to the defendants' prima facie showing that the alleged absence of aworking smoke detector was not a proximate cause of the infant plaintiff's injuries, the plaintiffsraised a triable issue of fact as to causation (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; see also Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]). Contrary to thedefendants' contention, the Supreme Court properly considered the expert affidavit submitted bythe plaintiffs on that issue, since the notary's failure to sign the jurat was a technical defect whichcould be disregarded in the absence of substantial prejudice to the defendants (see CPLR2001; Baluchinsky v General Motors Corp., 248 AD2d 574, 575 [1998]; SupremeAutomotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700 [1983]). The expert'sopinion was sufficient to raise a triable issue of fact as to whether a working smoke detectorwould have allowed the mother to discover the fire earlier than she did and, thus, reduced theamount of time the infant plaintiff was exposed to smoke (see Lein v Czaplinski, 106AD2d 723, 725 [1984]).
The defendants' remaining contentions are without merit. Covello, J.P., Angiolillo,Dickerson and Roman, JJ., concur.