| Trader v New York City Hous. Auth. |
| 2014 NY Slip Op 03824 [117 AD3d 1032] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| Joshua Trader, an Infant, by His Mother and NaturalGuardian, Lakisha Trader, et al., Respondents, v New York City HousingAuthority, Appellant. |
Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm and Linda M.Brown of counsel), for appellant.
Drabkin & Margulies, New York, N.Y. (Caitlin Robin of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appealsfrom an order of the Supreme Court, Kings County (Rivera, J.), dated November 13,2012, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is granted.
On December 7, 2009, the infant plaintiff, Joshua Trader, allegedly was burned whenhis leg made contact with a steam riser pipe in the kitchen of his family's apartment. Atthe time of the accident, the apartment building was owned and maintained by thedefendant. In support of its motion for summary judgment dismissing the complaint, thedefendant established its prima facie entitlement to judgment as a matter of law basedupon, inter alia, proof that Administrative Code of the City of New York§ 27-809, requiring insulation of accessible piping exceeding 165 degreesFahrenheit, did not apply to the subject building because it was constructed before theeffective date of that provision (see Palacios v City of New York, 80 AD3d 588, 589[2011]; Isaacs v West 34thApts. Corp., 36 AD3d 414, 416 [2007]; Bruno v New York City Hous. Auth., 21 AD3d 760, 761[2005]; Sanchez v Biordi, 259 AD2d 434, 434 [1999]), and proof that the pipewas maintained in accordance with acceptable standards (see Palacios v City of NewYork, 80 AD3d at 589; Bruno v New York City Hous. Auth., 21 AD3d at761).
In opposition to the defendant's prima facie showing, the plaintiffs failed to raise atriable issue of fact as to whether any of the exceptions to the "grandfathering" rule ofAdministrative Code of the City of New York § 27-809 applied (see Powers v 31 E 31 LLC,105 AD3d 657 [2013], lv granted 21 NY3d 863 [2013]; Sanchez vBiordi, 259 AD2d 434 [1999]). Moreover, the plaintiffs failed to raise a triable issueof fact as to whether the defendant had actual or constructive notice of the allegeddangerous condition, violating its common-law duty to maintain a safe premises (seePalacios v City of New York, 80 AD3d at 589; Ferguson v New York City Hous. Auth., 77 AD3d 706[2010]; Lam v Neptune Assoc., 203 AD2d 334, 335 [1994]).
Accordingly, the Supreme Court should have granted the defendant's motion forsummary judgment dismissing the complaint. Dillon, J.P., Leventhal, Sgroi and Maltese,JJ., concur.