The following papers numbered 1 to 10 read on this motion by defendants, Herbert Clavel, as Executor of the Estate of Herbert E. Clavel, Sr., and Herbert Clavel individually (the Clavel defendants), for an order granting them summary judgement dismissing the complaint, upon the ground that there are no genuine issues of material fact and for such other and further relief as this court may deem just and proper. Papers Numbered Notice of Motion — Affidavits — Exhibits 1-4 Affirmation in Opposition — Affidavits — Exhibits 5-7 Reply 8-10 Upon the foregoing papers, and for the reasons stated herein, it is ORDERED that the motion is granted and the complaint is dismissed, with prejudice. “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Ayotte v. Gervasio, 81 NY2d1062, 1063 [1993], citing Alvarez v. Prospect Hospital, 68 NY2d 320, 324[1986]). On defendants’ motions for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving plaintiff (see Boulos v. Lerner-Harrington, 124 AD3d 709 [2015]; Farrell v. Herzog, 123 AD3d 655 [2014]). Credibility issues regarding the circumstances of the subject incident require resolution by the trier of fact (see Bravo v. Vargas, 113 AD3d 579 [2014]; Martin v. Cartledge, 102 AD3d 841 [2013]), and the denial of summary judgment. The court finds that the Clavel defendants have met their burden in establishing their prima facie entitlement to summary judgment. Plaintiff alleges that the Clavel defendants failed to provide heat and hot water to his living quarters and as a result thereof he was burned when he tripped and fell over the electric cord which was attached to a frying pan, causing the scalding water in the frying pan to spill and fall on him. Plaintiff testified at his deposition that “When I was walking by, the cable accidentally got tangled on my foot, since it’s a very reduced space. And I got tangled and then took a step, that’s when the cable pulled it” (see EBT Fernandez EBT transcript at 51). Thus “the failure of the defendant landlord to provide heat and hot water to plaintiff’s apartment was not, as a matter of law a proximate cause of the personal injuries sustained” (Martinez v. Lazaroff, 48 NY2d 819, 820 [1979]). Plaintiff’s injuries were caused by the intervening and superceding act of getting the electric cord caught around his foot (Hoang v. Man Chong Wong, 49 AD3d 694 [2nd Dept 2008]). The opposition papers fail to raise a triable issue of fact. Dated: February 13, 2020.
