Mendez v. 512-514 Realty LLC

2026 NY Slip Op 30766(U)

• Court: New York Supreme Court, New York County
• Decided: March 4, 2026
• Docket: Index No. 157438/2017
• Status: Unpublished
• Author: Lyle E. Frank

Opinion

Mendez v 512-514 Realty LLC 2026 NY Slip Op 30766(U) March 4, 2026 Supreme Court, New York County Docket Number: Index No. 157438/2017 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.1574382017.NEW_YORK.002.LBLX038_TO.html[03/12/2026 3:45:51 PM] FILED: NEW YORK COUNTY CLERK 03/05/2026 11:58 AM INDEX NO. 157438/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/04/2026

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 157438/2017 ANTONIO MENDEZ, BACILIA DE LOS SANTOS MOTION DATE 04/23/2025 Plaintiff, MOTION SEQ. NO. 003 -v- 512-514 REALTY LLC, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 85, 86 were read on this motion to/for DISMISS .

Upon the foregoing documents, the motion is denied.

Background

This motion arises out of a tragic death that occurred in 2014. Defendant is the owner of

an apartment building in Hamilton Heights and in August of 2014, a fire broke out on the

premises. According to a subsequent inspection by FDNY fire marshals, the cause of the fire was

the failure of a power strip in Apartment 4. Plaintiff Mendez was living in another unit in the

building with his teenage daughter Melisa. He testified that on the day of the fire, he observed

smoke outside his window and that he directed his daughter to investigate the cause of the

smoke. Upon realizing that fire had broken out, Plaintiff left the unit and went to the fifth floor,

claiming that it was his understanding that his daughter was following him. Melisa did not

appear, and Plaintiff used a fire escape to leave the building. Sadly, his daughter passed away on

a stairwell landing in the building as a result of the fire. Plaintiff De Los Santos is the

administratix of Melisa’s estate. During the course of the fire, the door to Apartment 4 was

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opened and it failed to close. The building superintendent, Mr. Rojas, also tied open the front

door of the building and opened all of the basement doors. Plaintiffs contend that this created a

flue-effect causing smoke and flames to go up the stairwells into other floors.

Plaintiffs filed this underlying proceeding in August of 2017. The amended complaint

asserts claims against Defendant sounding in negligence and wrongful death. In April of 2018, a

bill of particulars was filed alleging that Defendant was negligent in four different ways: 1)

faulty electrical wiring, 2) failure to provide working smoke detectors; 3) the building lacked

functioning self-closing doors, and 4) a failure to provide means of egress from the building.

Defendant now moves for summary judgment in their favor dismissing all claims asserted

against them.

Standard of Review

Under CPLR § 3212, a party may move for summary judgment and the motion “shall be

granted if, upon all the papers and proof submitted, the cause of action or defense shall be

established sufficiently to warrant the court as a matter of law in directing judgment in favor of

any party.” CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to

judgment as a matter of law, the burden then shifts to the opponent to “produce evidentiary proof

in admissible form sufficient to establish the existence of material issues of fact which require a

trial of the action.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 [2016].

The facts must be viewed in the light most favorable to the non-moving party, but conclusory

statements are insufficient to defeat summary judgment. Id.

Discussion

Defendant moves to dismiss the claims asserted against them, arguing that Plaintiffs have

failed to establish proximate cause for their claims sounding in negligence. They rely largely on

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the report by the FDNY fire marshals and the expert affidavit of Eugene West. Mr. West is an

expert on fire causation who examined the fire scene and various documentation from this

matter. Defendant also argues that Plaintiff Mendez is not able to pursue his claim for negligent

infliction of emotional distress because his conduct in leaving the apartment negates several

required elements for that tort. Plaintiffs oppose the motion, arguing that there are several areas

of disputed fact going to the issue of causation for their negligence claims. They also argue that

Defendant has not submitted sufficient evidence in admissible form to support their motion. For

the reasons that follow, Defendant has failed to establish a prima facie entitlement to summary

judgment.

At the outset, Defendant argues that the absence of any citations for violations following

the fire is “proof positive” that they were not negligent. This argument fails, however, as they

fail to cite any case law for the proposition that a citation is a necessary requirement for

sustaining a finding of negligence. There are four main arguments that Plaintiff advances as to

why Defendant was negligent in this matter: 1) the self-closing door hinges on Apartment 4

failed, allowing the fire to spread, 2) that the smoke detectors did not work, thus failing to warn

Melisa of the fire in time, and 3) Mr. Rojas’ tying open the front and basement doors of the

building, caused by his lack of training, created the flue-effect that led to Melisa’s death.

Defendant argues that they have submitted evidence that conclusively disproves causation in this

matter.

There Are Issues of Fact Regarding the Smoke Detectors That Preclude Summary Judgment

Here

Turning first to the matter of the smoke detectors, there are clear issues of fact going to

whether they were functioning at the time of the fire. Defendant points to testimony of witnesses

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laying out the building policy on changing batteries for the smoke detectors. Plaintiffs point to

the multiple witness testimonies that do not claim to have heard the smoke alarms prior to the

fire, the deposition of Fire Marshal Santandrea stating that they could not recall if the detectors

were working, and witness testimony affirmatively stating the smoke detectors were not working

at the time. There are clear issues of fact here going to whether the smoke detectors were

functioning that defeat summary judgment on this ground.

Defendant also argues that even if the smoke detectors were not working, there could be

no negligence on their part because Melisa had warning in enough time to safely leave the

building. They cite to Poree, which is distinguishable. There, the First Department noted that

under the facts of the case, the tenant had borne the responsibility of maintaining the smoke

detectors and that the Plaintiff has specifically “acknowledged that he had time to exit the

apartment without injury, but elected to try and extinguish the flames.” Poree v. New York City

Hous. Auth., 139 A.D.3d 528, 529 [1st Dept. 2016]. Defendant has not established that the facts

of this case support a conclusive finding that Melisa had warning in enough time to safely leave

the building. That others managed to leave the building in time does not mean that Melisa had

sufficient time to safely leave the building.

There Are Issues of Fact Going to the Apartment 4 Door’s Failure

The next issue is the matter of the door to Apartment 4 being left open, thus allowing the

fire to spread throughout the building. Defendant points to testimony that the self-closing doors

were subject to periodic inspection and argues that this defeats the causation element of

negligence. While this would be evidence that would go to the matter of whether Plaintiffs have

established that the door to Apartment 4 failed, the absence of a conclusive finding that the

hinges were broken does not establish Defendant’s own prima facie case. Defendant also argues

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that the testimony of Mr. West conclusively rules out any negligence on their part. Mr. West’s

affidavit states that his “analysis determined that there is sufficient evidence to conclude that the

apartment # 4 door failed to self-close” and that while it is not uncommon for a self-closing

hinge to fail due to age or other use-related reasons, based on the burn marks it is possible that a

bunched up door mat or other debris caused the door to remain open. Plaintiffs in opposition

point to the lack of any debris in the relevant video of the door during the fire and other

violations for self-closing hinge failures in the building. The record in this case reveals material

issues of fact going to the reason for the failure of Apartment #4’s door to remain closed, thus

defeating a summary judgment motion based on this ground.

There Are Issues of Fact Going to the Superintendent’s Actions and the Duty of Care

One of Plaintiffs’ theories of liability is that Defendant was negligent in not training the

superintendent in fire safety, as the tying open of the doors caused the fire to spread further and

faster. Defendant argues that because Plaintiffs have not provided an expert opinion stating that

it would have been within the duty of care not to tie the doors open, there can be no finding of

negligence. They cite to Kwong, but the facts there are distinguishable. In Kwong, the First

Department held that because there was no evidence that the condition of the building stairwells

exacerbated a fire, and because there was no evidence that the defendant’s employees had been

the ones who opened the doors in question, there was no liability on that ground. Kwong v.

Southeast Grand St. Guild Hous. Dev. Fund Co. Inc., 129 A.D.3d 514, 514 [1st Dept. 2015]. As

here there is evidence that the doors being open exacerbated the fire and it is uncontroverted that

Defendant’s employee was the one who tied open the doors, Kwong does not avail. Defendant

has failed to meet their burden on this ground, because they have failed to establish that there

was no duty of care regarding the training of the superintendent.

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The Negligent Infliction of Emotional Distress Claim

Defendant argues that Plaintiff Mendez is not able to sustain his claim for negligent

infliction of emotional distress because he allegedly abandoned his daughter in the burning

building. They also argue that because he did not witness his daughter’s death, the claim fails. In

order to sustain a claim for negligent infliction of emotional distress, a plaintiff must allege that

they were either in the zone of danger or that they witnessed the injury-causing accident. T.I.D.

v. Ortiz, 215 A.D.3d 563, 564 [1st Dept. 2023]. While Defendant is correct in saying that it does

not appear disputed that Plaintiff Mendez witnessed the death of his daughter, they have not

established that the zone of danger claim does not apply here. To the extent that Defendant

argues that Plaintiff Mendez cannot sustain the claim because he did not suffer shock or fright

due to what Defendant characterizes as “his cowardice”, such an argument requires the Court to

make a credibility determination. It is for the factfinder, and not the Court, to decide whether to

believe Plaintiff Mendez’s statements about thinking that his daughter was following him and

how to characterize his actions following the report of smoke. Therefore, Defendant has not

established their prima facie entitlement to summary judgment dismissing the third cause of

action on this ground. To the extent that Defendant argues that Plaintiff Mendez cannot have

been in the zone of danger because there was no negligence on the part of Defendant, that

argument fails for the reasons set forth above. Ultimately, while Defendant has pointed to the

reasons why it would not be proper to grant Plaintiffs summary judgment at this stage, they have

failed to establish their own prima facie entitlement to summary judgment. Accordingly, it is

hereby

ADJUDGED that the motion is denied.

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3/4/2026 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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