ESDAILLE v. [And Another Action]. (2009)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 30, 2007, which in an action for personal injuries resulting from an apartment fire, granted the motion of defendants Whitehall Realty Company and Hampton Management Company (sponsor defendants) for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

 The court properly found that the motion for summary judgment was timely, as it was served within the time dictated by the court (see CPLR 2211;  Gazes v. Bennett, 38 A.D.3d 287, 835 N.Y.S.2d 1 [2007] ).   The 10-day delay in re-noticing the motion was due to the Clerk's office rejection of the original motion papers because the case had been transferred to another part that required motions to be brought by order to show cause (see Rivera v. Glen Oaks Vil. Owners, Inc., 29 A.D.3d 560, 817 N.Y.S.2d 293 [2006] ).

Sponsor defendants established their prima facie entitlement to summary judgment.   In opposition, plaintiffs failed to raise a triable issue of fact.

 Sponsor defendants cannot be held liable for injuries allegedly sustained as a result of the installation of window guards on the window to the terrace, as such was the responsibility of the building owner.   In any event, the window guards were properly installed in accordance with the New York City Health Code (24 RCNY 131.15[a] ), and contrary to plaintiffs' contention, the terrace did not constitute a fire escape (see Administrative Code of City of N.Y. § 27-2004[a][43];  Multiple Dwelling Law § 4[42] [c] ).  Furthermore, plaintiffs' theory based on an allegedly malfunctioning smoke detector is equally unavailing because even if, as claimed by plaintiffs, their duty to maintain the smoke detector in proper working order (see Tucker v. 64 W. 108th St. Corp., 2 A.D.3d 193, 768 N.Y.S.2d 460 [2003], lv. dismissed 2 N.Y.3d 759, 778 N.Y.S.2d 776, 811 N.E.2d 38 [2004], lv. denied 5 N.Y.3d 710, 803 N.Y.S.2d 31, 836 N.E.2d 1154 [2005] ) was shifted through a course of conduct by the building owner (see Ritto v. Goldberg, 27 N.Y.2d 887, 889, 317 N.Y.S.2d 361, 265 N.E.2d 772 [1970];  Cherubini v. Testa, 130 A.D.2d 380, 382, 515 N.Y.S.2d 29 [1987] ), such burden shifting impacts owner defendants, not sponsor defendants.