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TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, refusing to follow the 1st Department, determined the tenant, who was a defendant in a failed eviction action, had the right to bring a plenary action to recover attorney’s fees without violating the prohibition against claim splitting. It is significant that the tenant did not counterclaim for attorney’s fees in the answer to the eviction action. The fact that the answer included a boilerplate request for attorney’s fees in the wherefore clause did not amount to a counterclaim (which is authorized by Real Property Law § 234:

Applying the traditional understanding of the claim splitting rule discussed above and embodied in the landlord-tenant case law, the landlord’s bid for dismissal on claim splitting grounds must fail. It was the landlord, not the tenant, who instituted the two prior proceedings in Village Court. The tenant successfully defended herself against the landlord’s claims, but she did not assert an affirmative claim until the instant plenary action. Indeed, the landlord’s appellate brief explicitly concedes that the tenant did not interpose a Real Property Law § 234 counterclaim for attorneys’ fees in either of the two prior proceedings. Thus, because the instant action is the tenant’s first assertion of an affirmative claim for relief under section 234, the claim splitting rule poses no bar to her recovery. Put simply, the tenant cannot be guilty of claim splitting because, until the instant action, there was no claim to split. Caracaus v Conifer Cent. Sq. Assoc., 2017 NY Slip Op 08946, Fourth Dept 12-22-17

 

CIVIL PROCEDURE (CLAIM SPLITTING, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/LANDLORD-TENANT (EVICTION, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/REAL PROPERTY LAW (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/CLAIM SPLITTING  (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))

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TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT).

The Third Department determined plaintiff lessee’s lawsuit against the lessor’s insurance carrier for denial of a claim for water damage was properly dismissed. Under New York law plaintiff could not sue the landlord’s carrier directly unless plaintiff first procured a judgment against the landlord which was not satisfied:

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… [I]t was well-established under the common law that an injured party has no direct cause of action against the insurer of a tortfeasor … . That is, an injured party, as a stranger to the policy between the insured tortfeasor and its insurer, could not, at common law, bring a claim against the tortfeasor’s insurer due to the lack of privity between the injured party and the insurer, even where the injured party had obtained a judgment against the insured … . As a result of the hardships and inequities this rule created, the Legislature created a “limited statutory cause of action on behalf of injured parties directly against insurers,” which is applicable where the injured party has obtained a judgment against an insured and the judgment has gone unsatisfied for 30 days … . It is undisputed that plaintiff has not obtained a judgment against [the landlord], which is “a condition precedent to a direct action” against [the landlord’s] insurer and, thus, plaintiff cannot avail itself of this limited statutory cause of action … . Thus, even liberally construing the complaint, accepting the facts as alleged as true and affording plaintiff the benefit of every inference, plaintiff has not stated a statutory cause of action against [the insurer]. … . As plaintiff is not a named insured under the policy and did not obtain a judgment against [the landlord], Supreme Court properly granted Cincinnati’s motion dismissing the complaint due to plaintiff’s lack of standing and failure to state a cause of action … . GM Broadcasting, Inc. v Cornelius Enters., LLC, 2017 NY Slip Op 08593, Third Dept 12-7-17

 

INSURANCE LAW (LANDLORD-TENANT, CONTRACT LAW, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/LANDLORD-TENANT (INSURANCE LAW, CONTRACT LAW,  TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))/CONTRACT LAW (INSURANCE LAW, LANDLORD-TENANT, TENANT DID NOT HAVE STANDING TO SUE LANDLORD’S INSURER FOR DENIAL OF A PROPERTY DAMAGE CLAIM, TENANT HAD NOT PROCURED A JUDGMENT AGAINST THE LANDLORD, A PREREQUISITE FOR A DIRECT SUIT AGAINST THE INSURER (THIRD DEPT))

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OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT).

The First Department determined the out-of-possession landlord (AIMCO) was not liable for plaintiff’s injury from a shooting on the sidewalk outside a bar (PJ’s)i n the landlord’s building:

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Dismissal of the complaint as against AIMCO was proper in this action for personal injuries sustained by plaintiff when, while standing on the sidewalk outside a bar owned and operated by codefendant [PJ’s], he was shot in the foot. The record demonstrates that AIMCO owned the commercial space and had leased it to PJ’s, and as a premises owner, AIMCO cannot be held liable in negligence for an assault that occurred on a public street over which it exercised no control … .

AIMCO also owed plaintiff no duty of care to prevent the incident since the evidence showed that AIMCO was an out-of-possession landlord when the shooting happened …  and while it had the right to reenter the premises for the purpose of effecting repairs, there is no evidence that it retained control over the premises or was involved with how PJ’s operated its bar … .The 2009 stipulation of settlement between nonparty City of New York, AIMCO and PJ’s regarding a public nuisance action fails to raise a triable issue, because it expired by its own terms before the shooting and did not require AIMCO to do anything with regard to how the bar was being operated. Ballo v AIMCO 2252-2258 ACP, LLC, 2017 NY Slip Op 08443, First Dept 11-3017

 

NEGLIGENCE (OUT OF POSSESSION LANDLORD, THIRD PARTY ASSAULT, OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT))/ASSAULT, THIRD PARTY (CIVIL, OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, THIRD PARTY ASSAULT, OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT))/OUT OF POSSESSION LANDLORD (NEGLIGENCE, THIRD PARTY ASSAULT, OUT OF POSSESSION LANDLORD NOT LIABLE FOR INJURY TO PLAINTIFF WHO WAS SHOT ON THE SIDEWALK OUTSIDE THE LESSEE’S BAR (FIRST DEPT))

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OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant out-of-possession landlord (NYC Housing Authority) should have been granted summary judgment in this personal injury action. Plaintiff alleged a window in his apartment failed to stay open and slammed shut, severing a portion of a finger. Apparently a window had been repaired by the landlord about a year before, but no subsequent complaints about windows were made:

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“An out-of-possession landlord that has assumed the obligation to make repairs to its property cannot be held liable for injuries caused by a defective condition at the property unless it either created the condition or had actual or constructive notice of it” … . Here, with respect to the negligent maintenance claim, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged injury-producing condition or have actual or constructive notice of the condition … . The evidence showed that, more than one year prior to the incident, a window in the living room of the subject apartment had been repaired following an inspection by the defendant, and that there had been no complaints about the windows in the apartment following the repair. In opposition, the plaintiff failed to raise a triable issue of fact … .

The defendant also established its prima facie entitlement to judgment as a matter of law dismissing the remaining theories of liability by demonstrating that they had not been included in the notice of claim … . Cotto v New York City Hous. Auth., 2017 NY Slip Op 08258, Second Dept 11-22-17

 

NEGLIGENCE (OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/LANDLORD-TENANT  (OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, NEGLIGENCE, OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, THEORIES NOT INCLUDED IN NOTICE OF CLAIM PROPERLY DISMISSED (SECOND DEPT))

LESSEE DID NOT MOVE FOR A YELLOWSTONE INJUNCTION WITHIN THE CURE PERIOD ALLOWED BY THE LEASE, SUPREME COURT NO LONGER HAD JURISDICTION TO GRANT THE INJUNCTION (SECOND DEPT).

The Second Department determined the commercial lessee was not entitled to a Yellowstone injunction because the motion seeking the injunction was not made before the termination of the cure period set out in the lease:

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” A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture’ of the lease”… . ” To obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease, (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord’s notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'” … .

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“[A]n application for Yellowstone relief must be made not only before the termination of the subject lease . . . but must also be made prior to the expiration of the cure period set forth in the lease and the landlord’s notice to cure” … . “Where a tenant fails to make a timely request for a temporary restraining order, a court is divested of its power to grant a Yellowstone injunction” … . Riesenburger Props., LLLP v Pi Assoc., LLC, 2017 NY Slip Op 08294, Second Dept 11-22-17

 

LANDLORD-TENANT (LESSEE DID NOT MOVE FOR A YELLOWSTONE INJUNCTION WITHIN THE CURE PERIOD ALLOWED BY THE LEASE, SUPREME COURT NO LONGER HAD JURISDICTION TO GRANT THE INJUNCTION (SECOND DEPT))/YELLOWSTONE INJUNCTION (LANDLORD-TENANT, ESSEE DID NOT MOVE FOR A YELLOWSTONE INJUNCTION WITHIN THE CURE PERIOD ALLOWED BY THE LEASE, SUPREME COURT NO LONGER HAD JURISDICTION TO GRANT THE INJUNCTION (SECOND DEPT))

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LANDLORD DID NOT HAVE A DUTY TO INSULATE A PIPE BECAUSE IT WAS PART OF THE HEATING SYSTEM, INFANT PLAINTIFF WAS INJURED BY CONTACT WITH THE HOT PIPE (FIRST DEPT).

The First Department determined the landlord was not required to insulate the pipe leading to the radiator because the pipe was part of the heating system (which would have been impeded by insulation). Therefore the personal injury action stemming from infant plaintiff’s contact with the hot pipe was properly dismissed:

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Dismissal of the complaint was warranted in this action for personal injuries sustained when infant plaintiff slipped off the bed and fell against hot pipes that conveyed steam to the radiators in the apartment. The court properly concluded that defendant did not violate its common-law duty to plaintiffs in failing to insulate the hot pipes … . Plaintiffs argue that because the pipes were not the primary source of heat to the apartment, insulation would not have interfered with the functionality of the heating system … . However, even plaintiffs’ expert acknowledged that the pipes were part of the heating system and supplied some heat to the room. P.R. v New York City Hous. Auth., 2017 NY Slip Op 07955, First Dept 11-14-17

 

NEGLIGENCE (LANDLORD-TENANT, LANDLORD DID NOT HAVE A DUTY TO INSULATE A PIPE BECAUSE IT WAS PART OF THE HEATING SYSTEM, INFANT PLAINTIFF WAS INJURED BY CONTACT WITH THE HOT PIPE (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, LANDLORD DID NOT HAVE A DUTY TO INSULATE A PIPE BECAUSE IT WAS PART OF THE HEATING SYSTEM, INFANT PLAINTIFF WAS INJURED BY CONTACT WITH THE HOT PIPE (FIRST DEPT))/HEATING SYSTEMS  (LANDLORD-TENANT, LANDLORD DID NOT HAVE A DUTY TO INSULATE A PIPE BECAUSE IT WAS PART OF THE HEATING SYSTEM, INFANT PLAINTIFF WAS INJURED BY CONTACT WITH THE HOT PIPE (FIRST DEPT))

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LEASE WITH PLAINTIFF’S EMPLOYER DID NOT REQUIRE LANDLORD TO MAINTAIN THE YARD OUTSIDE THE BUILDING, PLAINTIFF WAS INJURED WHEN HE STEPPED INTO A HOLE DUG BY PLAINTIFF’S EMPLOYER IN THE YARD, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT).

The First Department determined the defendant landlord’s motion for summary judgment was properly granted in this personal injury action. The property was leased to plaintiff’s employer. Plaintiff’s employer was doing construction work in the yard outside the building. Plaintiff fell into a hole dug by his employer in the yard. The lease imposed repair responsibilities on the landlord for the building only, not the yard:

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The subject lease provided that defendant “shall maintain and repair the public portions of the building, both interior and exterior [and that]. . .[t]enant shall, throughout the term of this lease, take good care of the demised premises. . .and at its sole cost and expense, make all non-structural repairs. . .when needed to preserve them in good working order and condition.” Here, testimony established that the accident did not occur in a public portion of the building, but rather in the backyard that was exclusively controlled by plaintiff’s employer, thereby not implicating an area that defendant had retained the responsibility to maintain … . Similarly, the evidence demonstrated that, in actual practice, defendant did nothing to show that it had the authority to maintain or repair the accident premises … .

Furthermore, although the lease states that defendant had the right to reenter the premises to make repairs, plaintiff has failed to show that defendant violated a specific statutory safety provision, or that the hole in which he stepped was a structural defect … .

Plaintiff’s reference to an OSHA provision that was allegedly violated by defendant is unavailing, because defendant was not plaintiff’s employer … . Martinez v 3801 Equity Co., LLC, 2017 NY Slip Op 07938, First Dept 11-14-17

 

NEGLIGENCE (LANDLORD-TENANT, LEASE WITH PLAINTIFF’S EMPLOYER DID NOT REQUIRE LANDLORD TO MAINTAIN THE YARD OUTSIDE THE BUILDING, PLAINTIFF WAS INJURED WHEN HE STEPPED INTO A HOLE DUG BY PLAINTIFF’S EMPLOYER IN THE YARD, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))/LANDLORD-TENANT (NEGLIGENCE, LEASE WITH PLAINTIFF’S EMPLOYER DID NOT REQUIRE LANDLORD TO MAINTAIN THE YARD OUTSIDE THE BUILDING, PLAINTIFF WAS INJURED WHEN HE STEPPED INTO A HOLE DUG BY PLAINTIFF’S EMPLOYER IN THE YARD, LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FIRST DEPT))

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RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT).

The Second Department determined defendant landlord’s motion for summary judgment was properly denied. Plaintiff alleged a portion of the ceiling of her apartment fell down, injuring her. She alleged a standard negligence theory (failure to keep the premises safe) and a cause of action under the res ipsa loquitur doctrine. The court noted that the res ipsa loquitur doctrine was not available because plaintiff had been in the apartment for more than a year and therefore defendant did not have exclusive control over it. However there was evidence defendant had notice of a problem with the ceiling:

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… [T]he defendant failed to establish, prima facie, that she maintained the premises in a reasonably safe condition. In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that she or he neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence … .

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Here, in support of her motion, the defendant submitted, inter alia, the deposition testimony of the plaintiff, who testified that she had previously complained to the building superintendent, Jose Martinez, that the ceiling was damaged and water-stained, and that she feared it might fall on her. The plaintiff also testified that the defendant had advised her to inform Martinez of any complaints about her apartment. Under the circumstances, the defendant failed to establish, prima facie, that she had no notice of the alleged hazardous condition … . Correa v Matsias, 2017 NY Slip Op 06520, 2nd Dept 9-20-17

 

NEGLIGENCE (RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))/RES IPSA LOQUITUR (LANDLORD-TENANT, RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))

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PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Brathwaite Nelson, determined petitioner’s rent subsidy benefits under the Section 8 Housing Choice Voucher Program should not have been terminated. The termination was based upon the presence of petitioner’s former intimate partner, McGill, in the home. Petitioner demonstrated that McGill, who was abusive and whose presence was unwanted, was staying in the home without her permission. Termination of the rent subsidy benefits was deemed to violate the Violence Against Women Act (VAWA):

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After an administrative hearing, the determination to terminate [petitioner’s] benefits was confirmed based upon the finding that she was obligated, but failed, to request permission to add … McGill as an occupant to her subsidized apartment. … [T]he petitioner was entitled to the housing protections of the Violence Against Women Act … based upon uncontested hearing evidence establishing that she was subjected to an escalating pattern of stalking and abusive behavior and domestic violence by McGill, … whose course of abusive and violent conduct against her included his unwanted presence in her apartment. … [W]e conclude that [petitioner] was entitled to the housing protections of the VAWA, which prohibited her termination from the program on this ground … . Matter of Johnson v Palumbo, 2017 NY Slip Op 06534, 2nd Dept 9-20-17

LANDLORD-TENANT (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/MUNICIPAL LAW (LANDLORD-TENANT, RENT SUBSIDY, PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/RENT SUBSIDY (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))/SECTION 8  (PETITIONER’S RENT SUBSIDY SHOULD NOT HAVE BEEN TERMINATED BASED UPON THE UNWANTED PRESENCE IN THE HOME OF A FORMER INTIMATE PARTNER, TERMINATION OF BENEFITS VIOLATED THE VIOLENCE AGAINST WOMEN ACT (SECOND DEPT))

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QUESTION OF FACT WHETHER LANDLORD’S FAILURE TO UPGRADE 1930’S ELECTRICAL SYSTEM BREACHED A DUTY OWED TO THE TENANT TO KEEP THE APARTMENT SAFE, PLAINTIFF TENANT WAS INJURED IN A FIRE WHICH STARTED IN THE ELECTRICAL WIRING (FIRST DEPT).

The First Department, over a two-justice dissent, determined there was a question of fact whether the defendant landlord had breached its duty to keep plaintiff’s apartment reasonably safe. Plaintiff was injured in a fire in his apartment which was determined to have started in electrical wiring. Plaintiff had complained over the years about the inadequacy of the number of electrical outlets and the condition of the outlets. Plaintiff used extension cords and a power strip compensate for the allegedly inadequate outlets. The issue is whether the landlord’s failure to upgrade the 1930’s electrical system in the apartment breached a duty owed plaintiff:

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There is a triable issue of fact as to whether defendant had actual or constructive notice that a dangerous condition existed in plaintiff’s apartment that it failed to remedy … . Specifically, plaintiff’s expert raised factual issues as to whether the building’s 1930s electrical system constituted a dangerous condition and whether defendant was on notice of same. Although the expert, a professional engineer, did not personally inspect the premises, he based his opinion that the fire was caused by overloaded electrical wires on specific factual evidence in the record and his knowledge of consumers’ changed needs since the 1930s because of the invention and development of power-hungry personal appliances that simply require more electrical power … . Daly v 9 E. 36th LLC, 2017 NY Slip Op 06404, First Dept 9-5-17

LANDLORD-TENANT (NEGLIGENCE, QUESTION OF FACT WHETHER LANDLORD’S FAILURE TO UPGRADE 1930’S ELECTRICAL SYSTEM BREACHED A DUTY OWED TO THE TENANT TO KEEP THE APARTMENT SAFE, PLAINTIFF TENANT WAS INJURED IN A FIRE WHICH STARTED IN THE ELECTRICAL WIRING (FIRST DEPT))/NEGLIGENCE (LANDLORD-TENANT, QUESTION OF FACT WHETHER LANDLORD’S FAILURE TO UPGRADE 1930’S ELECTRICAL SYSTEM BREACHED A DUTY OWED TO THE TENANT TO KEEP THE APARTMENT SAFE, PLAINTIFF TENANT WAS INJURED IN A FIRE WHICH STARTED IN THE ELECTRICAL WIRING (FIRST DEPT))/ELECTRICAL WIRING (LANDLORD-TENANT, NEGLIGENCE, QUESTION OF FACT WHETHER LANDLORD’S FAILURE TO UPGRADE 1930’S ELECTRICAL SYSTEM BREACHED A DUTY OWED TO THE TENANT TO KEEP THE APARTMENT SAFE, PLAINTIFF TENANT WAS INJURED IN A FIRE WHICH STARTED IN THE ELECTRICAL WIRING (FIRST DEPT))

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