| Mauskopf v 1528 Owners Corp. |
| 2013 NY Slip Op 00464 [102 AD3d 930] |
| January 30, 2013 |
| Appellate Division, Second Department |
| Thomas David Mauskopf, Respondent, v 1528Owners Corp. et al., Respondents-Appellants, and G. Bauer, Inc., Individually and DoingBusiness as Bauer Oil Burner Services, Appellant-Respondent, et al.,Defendants. |
—[*1] Margaret G. Klein, New York, N.Y. (Mischel & Horn, P.C. [Scott T. Horn], ofcounsel), for respondents-appellants. Manuel A. Romero, P.C., Brooklyn, N.Y. (Jonathan M. Rivera of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries and wrongful death, thedefendant G. Bauer, Inc., individually and doing business as Bauer Oil Burner Services,appeals from so much of an order of the Supreme Court, Kings County (Lewis, J.),entered February 29, 2012, as denied its cross motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against it, and the defendants 1528Owners Corp. and Natari Realty Management Corp. cross-appeal from so much of thesame order as denied their motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against them.
Ordered that the order is reversed, on the law, with one bill of costs to the defendantG. Bauer, Inc., individually and doing business as Bauer Oil Burner Services, and thedefendants 1528 Owners Corp. and Natari Realty Management Corp., appearingseparately and filing separate briefs, payable by the plaintiff, and the motion and crossmotion are granted.
On May 13, 2004, the plaintiff's decedent, Max Mauskopf (hereinafter the decedent),was found alive in his bathtub, with burns on the left side of his body. There were noburns on the bottom of his feet or on his right side. The then-95-year-old decedentappeared "confused." He was subsequently brought to a hospital, and more than onemonth later he died from complications resulting from those burns. There were nowitnesses to the accident. The plaintiff commenced this wrongful death and personalinjury action against, among others, the defendants 1528 Owners Corp. (hereinafter theowner), the owner of the building where the decedent lived, Natari Realty ManagementCorp. (hereinafter NRMC), which managed the subject building, and G. Bauer Inc.,individually and doing business as Bauer Oil Burner Services (hereinafter Bauer), thecompany which serviced the boiler in the subject building on an as-needed basis. Theplaintiff claims that the [*2]decedent told him at thehospital that the decedent was scalded by the hot water that came from the faucet in thebathtub.
The owner and NRMC established their prima facie entitlement to judgment as amatter of law by submitting a transcript of the deposition testimony of the plaintiff andvarious medical records demonstrating that the plaintiff could not identify the cause ofthe decedent's injuries without resorting to speculation (see Califano v Maple Lanes,91 AD3d 896, 897 [2012]; Rivera v Cicero, 294 AD2d 554 [2002]). Theevidence submitted by the plaintiff in opposition was insufficient to raise a triable issueof fact. The only evidence submitted possibly linking the decedent's injuries to theallegedly scalding bathtub water was the hearsay statement that the decedent allegedlymade to the plaintiff, and such evidence, standing alone, was insufficient to defeat thesummary judgment motion of the owner and NRMC (see Roldan v New York Univ., 81 AD3d 625, 627 [2011]).In addition, neither an unsworn engineer's report, nor a plumber's affidavit based onpersonal observations made five years after the accident, raised a triable issue of fact (see Wallace v Sitma U.S.A.,Inc., 77 AD3d 918, 919 [2010]; Roldan v New York Univ., 81 AD3d at627). Accordingly, the Supreme Court should have granted the motion of the owner andNRMC for summary judgment dismissing the complaint and all cross claims insofar asasserted against them.
Furthermore, the Supreme Court erred in denying Bauer's cross motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it.Whether that defendant owed a duty of care to the decedent is a question of law to bedetermined by the courts (see Alvarez v Tele-Mechanics Inc., 276 AD2d 513,513-514 [2000]). Here, Bauer demonstrated its prima facie entitlement to judgment as amatter of law by submitting evidence demonstrating that it owed no duty of care to thedecedent. It is undisputed that Bauer never entered into a contract with the owner orNRMC for the routine and systematic inspection or maintenance of the building's boilersystem. Rather, NRMC called Bauer, an independent repairer/contractor, on an as-neededbasis to make specific repairs. Additionally, although NRMC occasionally called Bauerto conduct annual municipally required inspections, there was no evidence to contradictBauer's contention that the inspection did not involve checking the mixing valve or watertemperature (see Ledesma vAragona Mgt. Group, 50 AD3d 510, 511 [2008]; Daniels v Kromo LenoxAssoc., 16 AD3d 111 [2005]; Allen v Thompson Overhead Door Co., 3 AD3d 462[2004]; Stern v 522 Shore Rd. Owners, 237 AD2d 277 [1997]; McMurray vP.S. El., 224 AD2d 668 [1996]; Ayala v V & O Press Co., 126 AD2d 229[1987]; Alvarez v Tele-Mechanics Inc., 276 AD2d at 514). In opposition toBauer's showing, the plaintiff failed to raise a triable issue of fact. Accordingly, theSupreme Court should have granted Bauer's cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it. Angiolillo,J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.