        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

267
CA 11-01303
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.


ERNEST SINGLETON, INDIVIDUALLY AND AS PARENT
AND NATURAL GUARDIAN OF HIS MINOR DAUGHTER,
ESSENCE SINGLETON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CAROL GIBSON, AS EXECUTRIX OF THE ESTATE OF
MASON LEWIS, DECEASED, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BURDEN, GULISANO & HICKEY, LLC, BUFFALO (SARAH E. HANSEN OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered January 6, 2011 in a personal injury action. The
order granted the motion of defendant Carol Gibson, as executrix of
the estate of Mason Lewis, deceased, for summary judgment dismissing
the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action, individually and on
behalf of his infant daughter, seeking damages for third degree burns
sustained by his daughter when her lower back came into contact with a
hot radiator pipe in an apartment owned by Mason Lewis “and/or” his
estate (hereafter, decedent). Carol Gibson (defendant) is the
executrix of decedent’s estate, and the apartment was leased to
plaintiff’s wife. The accident occurred in an upstairs bedroom when
the child, who was then 13 months old, fell from a mattress while
sleeping. According to plaintiff, the child apparently rolled into a
pipe that was uninsulated and was attached to a steam radiator in the
room. The bill of particulars alleges that decedent was negligent in
“allowing extremely hot pipes to be exposed and uninsulated,” thereby
subjecting tenants to a significant risk of “burn injuries.”
Following discovery, defendant moved for summary judgment dismissing
the complaint and any cross claims against her, as executrix of
decedent’s estate, and Supreme Court granted the motion. We affirm.

     As a general rule, “a landlord is not liable to a tenant for
dangerous conditions on the leased premises, unless a duty to repair
                                 -2-                           267
                                                         CA 11-01303

the premises is imposed by statute, by regulation or by contract”
(Rivera v Nelson Realty, LLC, 7 NY3d 530, 534). Here, there was no
such duty set forth in the lease signed by plaintiff’s wife, and
plaintiff cites no statute or regulation imposing a duty upon
landlords to protect tenants from exposed radiator pipes. Plaintiff’s
reliance on Hughes v Concourse Residence Corp. (62 AD3d 463) is
misplaced, inasmuch as in that case the landlord had a duty under the
Administrative Code of the City of New York to insulate pipes carrying
steam or water exceeding 165 degrees. There is no such regulation in
the City of Rochester, where the leased apartment is located. Thus,
in the absence of a statute, regulation or contractual provision
requiring a landlord to repair the leased premises, decedent’s estate
cannot be held liable in negligence for the child’s injuries (see
Rivera, 7 NY3d at 536-537; Isaacs v West 34th Apts. Corp., 36 AD3d
414, lv denied 8 NY3d 810).




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
