Herbert v. Carter

Appellate Division of the Supreme Court of New York

Herbert v. Carter

283 A.D.2d 971, 724 N.Y.S.2d 918, 2001 N.Y. App. Div. LEXIS 4535

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 2, 2001

DocketAppeal No. 2

StatusPublished

This text of 283 A.D.2d 971 (Herbert v. Carter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herbert v. Carter, 283 A.D.2d 971, 724 N.Y.S.2d 918, 2001 N.Y. App. Div. LEXIS 4535 (N.Y. Ct. App. 2001).

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Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied that part of defendants’ motion seeking summary judgment dismissing the General Municipal Law § 205-a claim. Plaintiff commenced this action individually and on behalf of her husband, a firefighter who was seriously injured when the roof of defendants’ apartment building collapsed during a fire. The evidence demonstrates that the fire was caused by faulty electrical wiring and that the roof collapse was due in part to a structurally defective attic and roof. Defendants failed to meet their initial burden of establishing as a matter of law that they had no actual or constructive notice of alleged code violations with respect to the wiring of the building and the structural integrity of the attic and roof (see, Lusenskas v Axelrod, 183 AD2d 244, 248, appeal dismissed 81 NY2d 300; see generally, Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441). Defendants’ failure to make a prima facie showing of entitlement to judgment as a matter of law “requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Further, we reject defendants’ contentions that neither the current version of the Code of the City of Buffalo (Code) nor pre-1984 versions of the Code apply in this case. The court properly determined that the current version of the Code provides an independent basis for asserting claims under General Municipal Law § 205-a (see, Code of City of Buffalo § 242-5; see generally, Zanghi v Niagara Frontier Transp. Commn., supra, at 441). Moreover, pre-1984 versions of the Housing and Property Code portion of the Code expressly provided that they applied to buildings [972]*972used for dwelling purposes already in existence or thereafter constructed. (Appeal from Order of Supreme Court, Erie County, Dillon, J. — Summary Judgment.) Present — Hayes, J. P., Hurlbutt, Kehoe and Lawton, JJ.

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—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied that part of defendants’ motion seeking summary judgment dismissing the General Municipal Law § 205-a claim. Plaintiff commenced this action individually and on behalf of her husband, a firefighter who was seriously injured when the roof of defendants’ apartment building collapsed during a fire. The evidence demonstrates that the fire was caused by faulty electrical wiring and that the roof collapse was due in part to a structurally defective attic and roof. Defendants failed to meet their initial burden of establishing as a matter of law that they had no actual or constructive notice of alleged code violations with respect to the wiring of the building and the structural integrity of the attic and roof (see, Lusenskas v Axelrod, 183 AD2d 244, 248, appeal dismissed 81 NY2d 300; see generally, Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 441). Defendants’ failure to make a prima facie showing of entitlement to judgment as a matter of law “requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Further, we reject defendants’ contentions that neither the current version of the Code of the City of Buffalo (Code) nor pre-1984 versions of the Code apply in this case. The court properly determined that the current version of the Code provides an independent basis for asserting claims under General Municipal Law § 205-a (see, Code of City of Buffalo § 242-5; see generally, Zanghi v Niagara Frontier Transp. Commn., supra, at 441). Moreover, pre-1984 versions of the Housing and Property Code portion of the Code expressly provided that they applied to buildings [972]*972used for dwelling purposes already in existence or thereafter constructed. (Appeal from Order of Supreme Court, Erie County, Dillon, J. — Summary Judgment.) Present — Hayes, J. P., Hurlbutt, Kehoe and Lawton, JJ.

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Bluebook (online)

283 A.D.2d 971, 724 N.Y.S.2d 918, 2001 N.Y. App. Div. LEXIS 4535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herbert-v-carter-nyappdiv-2001.

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