

Frassinelli v 120 E. 73rd St. Corp. (2016 NY Slip Op 00899)





Frassinelli v 120 E. 73rd St. Corp.


2016 NY Slip Op 00899


Decided on February 9, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 9, 2016

Friedman, J.P., Acosta, Andrias, Saxe, Feinman, JJ.


176 118093/09 590777/10 590101/13

[*1]Marzia Frassinelli, et al., Plaintiffs-Respondents,
v120 East 73rd Street Corp., et al., Defendants-Appellants, Ragno Boiler Maintenance, Inc., Defendant, Tiffany Heating Services, Inc., Defendant-Respondent. 
120 East 73rd Street Corp., et al., Third-Party Plaintiffs-Appellants, 
Ragno Boiler Maintenance, Inc., Third-Party Defendants, Tiffany Heating Services, Inc., Third-Party Defendant-Respondent. 
[And a Second Third-Party Action]


Havkins Rosenfeld Ritzert & Varriale, LLP, New York (Tracy P. Hoskinson of counsel), for appellants.
Law Office of Bryan J. Swerling, P.C., New York (Bryan J. Swerling of counsel), for Marzia Frassinelli and Alberto Conti, respondents.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Jeremy M. Buchalski of counsel), for Tiffany Heating Services, Inc., respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered August 13, 2015, which, to the extent appealed from as limited by the briefs, denied the motion of defendants 120 East 73rd Street Corp., Ocram, Inc., and Ocram Holding, Inc. (collectively Ocram) for summary judgment dismissing the complaint as against them, and granted the motion of defendant Tiffany Heating Services, Inc. (Tiffany) for summary judgment dismissing the [*2]complaint and all cross claims as against it, unanimously modified, on the law, to grant Ocram's motion, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Ocram established entitlement to judgment as a matter of law, in this action where plaintiff Marzia Frassinelli alleges that she was injured when she was scalded by water while showering. Ocram submitted evidence showing that the boiler system in the building was regularly inspected, and there was no prior notice of fluctuating water temperatures (see Flores v Langsam Prop. Servs. Corp., 63 AD3d 502 [1st Dept 2009], affd 13 NY3d 811 [2009]). In opposition, plaintiffs failed to raise a triable issue of fact. Reliance on the 1968 Building Code and 2008 Plumbing Code is misplaced, since the building was not subject to those codes, and there is no support for plaintiffs' claim that the bathroom was negligently designed. Furthermore, the opinions proffered by plaintiffs' expert were conclusory and insufficient to raise a triable issue of fact (see generally Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9 [2005]).
Dismissal of the action as against Tiffany was warranted because there is no evidence that Tiffany was in any way negligent where it was not under a contract to maintain the boiler, nor did it perform any work on the boiler prior to the accident. It is uncontested that there were no issues with the boiler for over a month after Tiffany performed an annual inspection of the boiler, and while plaintiffs' expert inspected the valve that allegedly failed, he did not point to any defect in the valve that could have caused a sudden temperature fluctuation.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 9, 2016
CLERK


