Whitney v. Valentin

Appellate Division of the Supreme Court of New York

Whitney v. Valentin

105 A.D.3d 519, 963 N.Y.S.2d 109

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

DecidedApril 9, 2013

StatusPublished

Cited by2 cases

This text of 105 A.D.3d 519 (Whitney v. Valentin) 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

Whitney v. Valentin, 105 A.D.3d 519, 963 N.Y.S.2d 109 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered on or about October 3, 2012, which, insofar as appealed from, denied defendants Roma Realty, LLC and PNC Enterprises, LLC’s motion for summary judgment dismissing the complaint as against them and on their cross claim for contractual indemnification against defendant Valentin, unanimously affirmed, without costs.

Roma Realty’s witness testified that, after purchasing the property, Roma replaced the cellar doors over which plaintiff subsequently fell, and that he knew that the doors were not equipped “with strong railings,” as required by Administrative [520]*520Code of City of NY § 19-119. Defendants’ argument that Administrative Code of City of NY § 19-119 is not applicable to the subject cellar doors is unavailing (see Lowenstein v Normandy Group, LLC, 51 AD3d 517, 519 [1st Dept 2008]). Given Roma’s witness’s undisputed testimony as to the violation of a specific statute, Roma, as an out-of-possession landlord with the right to reenter the premises to inspect and repair, is charged with constructive notice of the defective condition (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565 [1987]; Landy v 6902 13th Ave. Realty Corp., 70 AD3d 649 [2d Dept 2010]). The testimony also raises an issue of fact whether Roma created or had actual notice of the condition that allegedly caused plaintiffs fall.

Issues of fact also exist as to the scope of PNC’s duties as Roma’s managing agent and therefore whether PNC may be held liable for plaintiffs injuries.

Since, contrary to defendants’ argument, the record does not demonstrate conclusively that Valentin proximately caused plaintiffs injuries, defendants are not entitled to summary judgment on their cross claim for contractual indemnification against her.

We have considered defendants’ remaining contentions and find them unavailing.

Concur—Andrias, J.P, Moskowitz, Freedman, Manzanet-Daniels and Feinman, JJ.

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Order, Supreme Court, Bronx County (Mary Ann BriganttiHughes, J.), entered on or about October 3, 2012, which, insofar as appealed from, denied defendants Roma Realty, LLC and PNC Enterprises, LLC’s motion for summary judgment dismissing the complaint as against them and on their cross claim for contractual indemnification against defendant Valentin, unanimously affirmed, without costs.

Roma Realty’s witness testified that, after purchasing the property, Roma replaced the cellar doors over which plaintiff subsequently fell, and that he knew that the doors were not equipped “with strong railings,” as required by Administrative [520]*520Code of City of NY § 19-119. Defendants’ argument that Administrative Code of City of NY § 19-119 is not applicable to the subject cellar doors is unavailing (see Lowenstein v Normandy Group, LLC, 51 AD3d 517, 519 [1st Dept 2008]). Given Roma’s witness’s undisputed testimony as to the violation of a specific statute, Roma, as an out-of-possession landlord with the right to reenter the premises to inspect and repair, is charged with constructive notice of the defective condition (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565 [1987]; Landy v 6902 13th Ave. Realty Corp., 70 AD3d 649 [2d Dept 2010]). The testimony also raises an issue of fact whether Roma created or had actual notice of the condition that allegedly caused plaintiffs fall.

Issues of fact also exist as to the scope of PNC’s duties as Roma’s managing agent and therefore whether PNC may be held liable for plaintiffs injuries.

Since, contrary to defendants’ argument, the record does not demonstrate conclusively that Valentin proximately caused plaintiffs injuries, defendants are not entitled to summary judgment on their cross claim for contractual indemnification against her.

We have considered defendants’ remaining contentions and find them unavailing.

Concur—Andrias, J.P, Moskowitz, Freedman, Manzanet-Daniels and Feinman, JJ.

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Bluebook (online)

105 A.D.3d 519, 963 N.Y.S.2d 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitney-v-valentin-nyappdiv-2013.

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