Abreu v. Stratford Realty Associates

Appellate Division of the Supreme Court of New York

Abreu v. Stratford Realty Associates

208 A.D.2d 465, 617 N.Y.S.2d 331, 1994 N.Y. App. Div. LEXIS 10513

Appellate Division of the Supreme Court of the State of New York·Decided October 27, 1994·Published·Cited by 3 cases

Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.) entered July 1, 1993, which granted defendant’s motion for summary judgment dismissing the complaint, and order, same court and Justice, entered November 24, 1993, which denied plaintiff’s motion for, inter alia, renewal, unanimously affirmed, without costs.

Since defendant landlord’s failure to provide heat and hot water is not a proximate cause of the injuries sustained by plaintiff when she stumbled while carrying a pot of hot water, which she had heated on her stove, into the bathroom, the complaint must be dismissed pursuant to Martinez v Lazaroff (48 NY2d 819).

The rejection of the belated presentation of an entirely new theory of recovery as to disrepair of the bathroom floor was a proper exercise of the IAS Court’s discretion since the considerable prejudice to defendant, which had completed its discovery and obtained summary judgment dismissing the complaint on the first theory, was properly treated as "[t]he operative factor considered” (Gonfiantini v Zino, 184 AD2d 368, 369).

We have considered the plaintiff’s remaining arguments, and find them to be without merit. Concur—Murphy, P. J., Carro, Ellerin, Wallach and Kupferman, JJ.

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Order, Supreme Court, Bronx County (Bertram Katz, J.) entered July 1, 1993, which granted defendant’s motion for summary judgment dismissing the complaint, and order, same court and Justice, entered November 24, 1993, which denied plaintiff’s motion for, inter alia, renewal, unanimously affirmed, without costs.

Since defendant landlord’s failure to provide heat and hot water is not a proximate cause of the injuries sustained by plaintiff when she stumbled while carrying a pot of hot water, which she had heated on her stove, into the bathroom, the complaint must be dismissed pursuant to Martinez v Lazaroff (48 NY2d 819).

The rejection of the belated presentation of an entirely new theory of recovery as to disrepair of the bathroom floor was a proper exercise of the IAS Court’s discretion since the considerable prejudice to defendant, which had completed its discovery and obtained summary judgment dismissing the complaint on the first theory, was properly treated as "[t]he operative factor considered” (Gonfiantini v Zino, 184 AD2d 368, 369).

We have considered the plaintiff’s remaining arguments, and find them to be without merit. Concur—Murphy, P. J., Carro, Ellerin, Wallach and Kupferman, JJ.

Abreu v. Stratford Realty Associates, 208 A.D.2d 465, 617 N.Y.S.2d 331, 1994 N.Y. App. Div. LEXIS 10513 (N.Y. Ct. App. 1994).

Pincite

208 A.D.2d 465 (Abreu v. Stratford Realty Associates) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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