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IN THIS CEILING-COLLAPSE CASE, THE NEGLIGENCE PER SE CAUSE OF ACTION BASED ON THE MULTIPLE DWELLING LAW AND THE RES IPSA LOQUITUR CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging negligence per se and the res ipsa loquitur cause of action in this ceiling-collapse case should have been dismissed. The negligence per se cause of action alleged a violation of Multiple Dwelling Las section 78(1) which does not impose a specific duty on the landlord. The res ipsa loquitur cause of action failed, in part, because the landlord did not have exclusive control of the plaintiff’s bathroom and the leaking bathtub in the apartment above:

A cause of action alleging negligence per se predicated on a violation of Multiple Dwelling Law § 78(1) cannot lie, as the statute imposes only a general duty to maintain a multiple dwelling and does not impose a specific duty upon a landlord … .

“The doctrine of res ipsa loquitur is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident where the plaintiff can show that: (1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendant’s exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . Here, the plaintiff failed to establish that her bathroom ceiling and a bathtub in an upstairs apartment were within the defendants’ exclusive control … . The plaintiff also failed to eliminate triable issues of fact as to her comparative fault, as she entered the bathroom to scrub the bathtub despite being concerned about the imminent collapse of the ceiling before it fell … . Williams v SI 1688 Realty, LLC, 2026 NY Slip Op 04896, Second Dept 8-5-26

Practice Point: Multiple Dwelling Law 78(1) imposes a general duty to maintain a multiple dwelling but does not impose a specific duty upon a landlord. Therefore it could not be the basis of a negligence per se cause of action against the landlord in this ceiling-collapse case.

Practice Point: The res ipsa loquitur cause of action did not lie in this ceiling collapse case because the landlord did not have exclusive control over the bathroom where the ceiling fell or the leaking bathtub in the apartment above.

 

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