| Moshe K. v Nu Kol Tuv, Inc. |
| 2012 NY Slip Op 06014 [98 AD3d 652] |
| August 22, 2012 |
| Appellate Division, Second Department |
| Moshe K. et al., Respondents, v Nu Kol Tuv, Inc.,Appellant, et al., Defendant. |
—[*1] Alvin M. Bernstone, LLP, New York, N.Y. (Matthew A. Schroeder of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant Nu Kol Tuv, Inc.,appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated October 27, 2011,which denied its motion for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the order is affirmed, with costs.
The infant plaintiff was injured while bathing in a bathtub in the apartment where he resided.The infant plaintiff allegedly was in the bathtub for about five minutes, with the water running atall times, without incident, when he suddenly began to cry and then scream. The bathtub's drainhad not been closed off and there was only about an 1-1½ inches of water in the tub wherehe was sitting at all times. He allegedly was burned by excessively hot water. Thereafter, theinfant plaintiff, and his mother suing derivatively, commenced this action against, among others,the landlord, Nu Kol Tuv, Inc. (hereinafter the landlord).
The landlord failed to establish, prima facie, that it maintained its water heater system in areasonably safe manner and that it did not create or have actual or constructive notice of thealleged hazardous condition (seeSimmons v Sacchetti, 15 NY3d 797 [2010]; Scholtz v Catholic Health Sys. of Long Is., Inc., 70 AD3d 808[2010]; Rosencrans v Kiselak, 52AD3d 492 [2008]). No evidence was submitted regarding the temperature at which the waterheater was set at the time of the accident, and no evidence was submitted as to what the landlorddid in response to the alleged complaints of the infant plaintiff's parents that the hot water in theone-family bungalow was too hot and that they experienced surges of hot water in other wateroutlets within the bungalow. The issue of whether the mother's alleged negligent supervision ofthe infant plaintiff was the sole proximate cause of the incident is one that cannot be resolved asa matter of law based on the landlord's submissions (see Derdiarian v Felix Contr. Corp.,51 NY2d 308 [1980]; Lindsey v H.B.Assoc., L.L.C., 24 AD3d 274 [2005]). Since the landlord failed to meet its initialburden, the sufficiency of the plaintiffs' opposition papers need not be considered (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Angiolillo, J.P., Dickerson,Leventhal and Chambers, JJ., concur.