Ilene Taylor, etc., et al., respondents, v. New York City Housing Authority, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Ilene Taylor, etc., et al., respondents, v. New York City Housing Authority, appellant.

2012–05422 (Index No. 28501/08)

Decided: April 2, 2014

REINALDO E. RIVERA, J.P. PLUMMER E. LOTT SHERI S. ROMAN JEFFREY A. COHEN, JJ. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Marie Lowery and Patrick J. Lawless of counsel), for appellant. Simonson Hess Leibowitz & Goodman, P.C., New York, N.Y. (Edward S. Goodman of counsel), for respondents.

Argued—February 27, 2014

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 8, 2012, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law.   Contrary to the defendant's contention, it failed to establish that it installed an operational smoke detector in the subject apartment in compliance with section 27–2045(a)(1) of the Administrative Code of the City of New York prior to the subject fire on February 17, 2008 (cf.  Vanderlinde v 600 W. 183rd St. Realty Corp., 101 AD3d 583;  Curry v. 1716 Ave. T Realty LLC, 89 AD3d 978, 979;  Carter v. Grenadier Realty, 83 AD3d 640, 641;  Fairclough v. 679 Magenta, 309 A.D.2d 619, 620;  see also Peyton v. State of Newburgh, Inc., 14 AD3d 51, 53;  Fields v. S & W Realty Assoc., 301 A.D.2d 625;  Acevedo v. Audobon Mgt., 280 A.D.2d 91, 94).

The defendant also failed to establish its prima facie entitlement to judgment as a matter of law on the basis that any alleged failure to install an operational smoke detector was not a proximate cause of the decedent's death and of the other plaintiffs' alleged injuries (see generally Pappalardo v. Long Is. R.R. Co., 36 AD3d 878, 880;  Croce v. Budget Rent–A–Car Corp., 7 AD3d 748).

Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiffs to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

RIVERA, J.P., LOTT, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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