SANCHEZ v. [And a Third-Party Action] (2025)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 12, 2023, which, to the extent appealed from as limited by the briefs, granted defendant/third-party defendant Bruckner Plumbing, Ltd., and defendants/third-party plaintiffs Bronx United in Leveraging Dollars, Inc. and Dougert Management Corporation (the Building defendants)’s motions for summary judgment dismissing the complaint as against all defendants and all cross-claims asserted against them, unanimously affirmed, without costs.

In this action for personal injuries, plaintiff alleges that on January 17, 2016, she slipped and fell because there was water on her bathroom floor inside her apartment.  Defendants/third-party plaintiffs Bronx United in Leveraging Dollars, Inc. and Dougert Management Corporation, are the owner and managing agent.  Defendant/third-party defendant Bruckner Plumbing, Ltd was retained by the building defendants to repair a water pipe that burst in plaintiff's bathroom about a week before the accident on January 8, 2016, and inspected the bathroom the day after plaintiff fell on January 18, 2016.  The Bruckner plumber who inspected the bathroom on January 18, 2016, testified that the water on the floor was most likely due to an ineffective shower curtain, which plaintiff did not refute, as she was unable to identify the source of the water that caused her accident.

Initially, plaintiff does not claim that the building defendants caused the alleged water condition.  Furthermore, plaintiff failed to rebut Bruckner Plumbing's prima facie showing that its employees did not launch a force or instrument of harm by negligently repairing the pipe that burst in her bathroom on January 8, 2016.  Plaintiff's deposition testimony establishes that after the pipe was repaired, she did not see water on the floor and did not complain to defendants about her apartment's plumbing until after the accident (see Pollock v. Cushman & Wakefield, Inc., 210 A.D.3d 446, 447, 177 N.Y.S.3d 45 [1st Dept. 2022]).  In the absence of a contract for routine maintenance, Bruckner Plumbing, as an independent contractor, had no duty to inspect or warn of purported defects (see Rosenbaum, Rosenfeld & Sonnenblick, LLP v. Excalibur Group NA, LLC, 146 A.D.3d 489, 490, 45 N.Y.S.3d 37 [1st Dept. 2017]).

Nor has plaintiff rebutted defendants’ prima facie showing that they lacked actual notice of the water on plaintiff's bathroom floor before her accident (see Matcovsky v. Days Hotel, 10 A.D.3d 557, 558, 782 N.Y.S.2d 64 [1st Dept. 2004]).  Plaintiff's deposition testimony offered in support of defendants’ motions shows that she never complained that there was water on her bathroom floor or about the “small black stains” forming in her bathroom before she slipped and fell on water on January 17, 2016 (see Perez v. River Park Bronx Apts., Inc., 168 A.D.3d 465, 466, 91 N.Y.S.3d 78 [1st Dept. 2019]).  Bruckner Plumbing further demonstrated that it lacked actual notice that there was any issue with the plumbing work it performed to plaintiff's bathroom on January 8, 2016, about a week before the accident, by submitting Colderbanks's affidavit averring that the company received no complaints about its work after that repair was completed (see Barreto v. 750 Third Owner, LLC, 194 A.D.3d 441, 442, 143 N.Y.S.3d 529 [1st Dept. 2021]).

Contrary to plaintiff's contention, the complaint was properly dismissed against defendants on the issue of whether they had constructive notice.  The record demonstrates that the complained-of hazard, water on plaintiff's bathroom floor, was not visible and apparent, much less visible and apparent for a sufficient period to permit its discovery and remediation (see Guttierez v. Lenox Hill Neighborhood House, Inc., 4 A.D.3d 138, 139, 771 N.Y.S.2d 513 [1st Dept. 2004]).  Plaintiff testified at her deposition that she never saw water on her floor before her accident (see Viera v. Riverbay Corp., 44 A.D.3d 577, 579, 845 N.Y.S.2d 12 [1st Dept. 2007]).

Plaintiff also failed to raise an issue of fact with respect to whether the water that caused her to slip and fall was an ongoing and recurring dangerous condition which was routinely left unaddressed by the building defendants (see Perez v. River Park Bronx Apts., Inc., 168 A.D.3d at 466, 91 N.Y.S.3d 78).  The record shows that after a water pipe burst in plaintiff's bathroom on January 8, 2016, it was repaired that day, and plaintiff's deposition testimony establishes that she never saw water on her bathroom floor until after the accident (see Richardson v. S.I.K. Assoc., L.P., 102 A.D.3d 554, 958 N.Y.S.2d 144 [1st Dept. 2013];  Early v. Hilton Hotels Corp., 73 A.D.3d 559, 562, 904 N.Y.S.2d 367 [1st Dept. 2010]).

Plaintiff's claim that the building defendants failed to establish their entitlement to summary judgment because they presented no evidence that they had a program to inspect the concealed water pipes in her bathroom despite being aware that they could deteriorate is unpersuasive.  Plaintiff submitted no evidence demonstrating that the building defendants violated their duty of reasonable care because there was an object capable of deteriorating and leaking water into her bathroom that was concealed from view which would have been uncovered by routine inspection (see Singh v. United Cerebral Palsy of N.Y. City, Inc., 72 A.D.3d 272, 276, 896 N.Y.S.2d 22 [1st Dept. 2010]).