Recitation, as required by CPLR §2219(a), of the papers considered in the review of the motion as indicated below: Papers Numbered Notice of Motion and Affirmation in Support & Exhibits 1 Affirmation in Opposition & Exhibits 2 Affirmation in Reply & Exhibits 3 DECISION/ORDER Upon the foregoing cited papers the Decision/Order on this motion is decided as follows: The plaintiff commenced this action for personal injuries following an accident in which the plaintiff, Elio Varela, walked into a bathroom and the floor collapsed, causing him to fall into the boiler room below. Langsam Property Services Corp. is the property manager for the building located at 1082 Gerard Avenue, Bronx, New York. Newstart Realty Housing Development Fund Company owns the building. The plaintiff moves for an order awarding summary judgment pursuant to CPLR §3212 on the issue of liability. The defendants oppose the motion. The plaintiff was a tenant of Apartment A and lived there for twenty-nine years. The apartment was leased by the plaintiff’s mother and sister. On December 11, 2018, at around 6:45 p.m., Mr. Varela arrived home from work and went into the bathroom with the intention of getting into the shower. As soon as Mr. Varela stepped in front of the toilet, which is located next to the shower, the floor collapsed. Mr. Varela was able to break his fall by holding on to a pipe. However, he was not able to hang onto the pipe. As he let go, he fell approximately twenty-two feet and landed on his side in front of the boiler tank. Immediately after the fall, Mr. Varela’s left side was numb, and he was bleeding with cuts and scrapes all along his left side. A party seeking summary judgment must make a prima facie showing that it is entitled to judgment as a matter of law by proffering sufficient evidence to demonstrate the absence of any material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320). Once the proponent of a motion for summary judgment meets this burden it is incumbent upon the party opposing the motion to submit proof in admissible form that an issue of fact exists which necessitates a trial (Zuckerman v. City of New York, 49 NY2d 557). The courts function on a motion for summary judgment is issue finding and not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395). Summary judgment is a drastic remedy that deprives the litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v. Ropog Cab Corp., 153 AD2d 520). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman supra). Failure of the movant to sustain its burden requires denial of the motion, regardless of the sufficiency of the opposition (Winegrad v. New York Univ. Med Center, 64 NY2d 851). Mr. Varela maintains that he always had problems with the bathroom floor. The leak originated from the wall in front of the toilet next to the wall of the bathtub. Mr. Varela constantly tried to keep the floor dry and some of the tiles would loosen up from the floor. Three months prior to the accident, Mr. Varela complained about the leak. He left his key with the superintendent, Jorge Pena, to fix the leak. However, he does not know if the superintendent went into the apartment when he gave him the key. In the three months following his complaint, no work was performed within the bathroom. Mr. Varela asked the superintendent why the floor was not fixed on multiple occasions, however, Mr. Pena would inform him that he contacted a company and was waiting for the order to go through so that they could come and fix it. The plaintiff argues that res ipsa loquitur applies to the instant matter. Res ipsa loquitor is warranted when the plaintiff establishes the following elements: “1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; 2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; 3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” (Dermatossian v. New York City Transit Authority, 67 NY2d 219). The evidence demonstrates that the first element of res ipsa loquitur is satisfied. The bathroom floor of Apartment A/ceiling of the boiler room below, collapsed when the plaintiff stepped onto the floor. A ceiling collapse does not ordinarily occur in the absence of negligence (Wenzel v. All City Remodeling, Inc., 195 AD3d 496). In that same vein, it has been held that “drain covers do not collapse under a person’s foot in the absence of negligence” (Valdez v. Upper Creston LLC, 201 AD3d 560). The plaintiff’s accident was an event which ordinarily does not occur in the absence of someone’s negligence. Furthermore, the plaintiff has demonstrated that the defendants had exclusive control over the ceiling in the boiler room. “Exclusive control of the instrumentality of the accident, ‘is not an absolutely rigid concept, but is subordinate to its general purpose, that of indicating that it was probably the defendant’s negligence which caused the accident in question’” (Pavon v. Rudin, 254 AD2d 143, citing Nebit v. New York Trans. Auth., 170 AD2d 92, 98). Exclusivity does not require the elimination of all other possible causes of the incident (Banca Di Roma v. Mutua of Am. Life Ins. Co., Inc, 17 AD3d 119, 121). The evidence presented demonstrates that the defendants owned and maintained the building. Additionally, work orders demonstrate that the defendants were required to make repairs in response to the complaints that were made to them. Mr. Cardona has been employed as a property manager for Langsam Properties Services Corp. for thirty-two years (Plaintiff’s Motion, Exhibit D, Page 11 lines 21-23). Mr. Cardona has managed the property at 1082 Gerard Avenue for four to five years (page 13 lines 13-15). In 2018, the superintendent of the building was Jorge Pena. Mr. Cardona first became aware of the plaintiff’s accident on the night that it occurred following a phone call from the superintendent. Mr. Cardona prepared an accident report the day of the accident. Mr. Cardona did not personally observe the conditions of the floor in the apartment as they existed at the time of the accident or the ceiling of the boiler room (page 27 line 21- page 28 line 5). An engineer, Jose Laundauro, was hired to check the floor integrity of Apartment A (page 28 lines 20-25). Mr. Laundauro told Mr. Cardona that while it is a rare occurrence, there was some water that accumulated and that caused the concrete floor to fall (page 28 lines 14-22). A work order dated August 2, 2018, details the work that was completed within Apartment A. The work completed within the apartment was installation of sheetrock in the bathroom ceiling, and wall in addition to paint and plaster in the bathroom and behind the stove (page 35 lines 7-11) In observing the work order, Mr. Cardona testified that it was in response to a complaint (page 35 lines 15-19). He knows that this was in response to a complaint because of the work involved (page 35 lines 21-24). He does not know when the complaint came in. He further testified that the superintendent probably called him and gave him the complaint. He does not remember Mr. Pena reporting a complaint regarding Apartment A dealing with the plaster and paint in the kitchen and bathroom (page 37 lines 3-6). Typically, the complaints would be made verbally to the superintendent and the super would then investigate them and report them back to Mr. Cardona (page 36 line 20- page 37 line 2). The Appellate Division in Valdez v. Upper Creston, LLC, 201 AD3d 560, found that res ipsa loquitur applied when the plaintiff stepped on a drain cover which subsequently collapsed under her foot. In Valdez, the court noted that the defendants did not present any evidence to suggest another plausible explanation for the accident. Similar to Valdez, the defendants in the instant matter did not offer any other plausible explanation for the collapse of the floor of Apartment A and boiler room ceiling. The defendants in opposition argue that the plaintiff and the other tenants in Apartment A had control and use of the flooring in the bathroom of Apartment A. The defendants also argue that the accident could have been caused by the overuse or misuse of the water facilities by plaintiff or other tenants or the tenant in the apartment above Mr. Varela’s bathroom. However, “…defendant’s suggestion that other residents using the bathroom would have removed their exclusive control is mere speculation” (Id. at 323, citing Torres v. Cordice, 11 Misc. 3d 23, 25). Lastly, the plaintiff has demonstrated that the accident was not due to any voluntary action or contribution by Mr. Varela. The testimony has established that at the time of the accident, the plaintiff had just arrived from work and stepped inside of the bathroom to take a shower. The moment that the plaintiff stepped in front of the toilet, the floor beneath him collapsed. In opposition, the defendants submit an affidavit by Jorge Pena claiming that he has never received any complaints about the ceiling, nor has he heard from the plaintiff regarding the ceiling. However, the affidavit does not consist of an attestation by a translator. Pursuant to CPLR §2101(b), “…where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate” (CPLR 2101[b]; Eustaquio v. 860 Cortlandt Holdings, Inc., 95 AD3d 548). Furthermore, the defendants include an affidavit of Mr. Cardona stating that he had received no complaints regarding the ceiling or flooring of the bathroom of Apartment A. However, the defendants claimed lack of notice is unavailing, as notice is inferred when the doctrine of res ipsa loquitur applies (see Valdez supra). “Where a plaintiff’s ‘prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable and unrebutted, summary judgment on liability is proper’” (Thomas v. New York Univ. Med. Ctr., 283 AD2d 316, 317, quoting, Salter v. Deaconess Family Medicine Ctr., 267 AD2d 976, 977). The defendants failed to submit any evidentiary proof to rebut the permissible inference of negligence (see O’Connor v. 72 Street East Corp., 224 AD2d 246, citing, Dillenberger v. 74 Fifth Ave. Owners Corp., 155 AD2d 327). Accordingly, the plaintiff’s motion for summary judgment on the issue of liability is granted. Based on the foregoing, it is hereby: ORDERED AND ADJUDGED, that the plaintiff’s motion for summary judgment on the issue of liability is granted, and it is further, ORDERED AND ADJUDGED, that the plaintiff shall serve a copy of this decision and order on all parties within twenty (20) days of notice of entry. This constitutes the decision and order of the court. Dated: May 1, 2023
