Acevedo v. Audubon Mgt.

• Decision Date: 22 February 2001
• Citation: 280 A.D.2d 91,721 N.Y.S.2d 332
• Court: New York Supreme Court — Appellate Division
• Parties: SONIA ACEVEDO et al., Respondents,<BR>v.<BR>AUDUBON MANAGEMENT, INC., Defendant, and<BR>MARTIN LEVINE et al., Appellants. (And a Third-Party Action.)

280 A.D.2d 91

721 N.Y.S.2d 332

SONIA ACEVEDO et al., Respondents,

v. AUDUBON MANAGEMENT, INC., Defendant, andMARTIN LEVINE et al., Appellants. (And a Third-Party Action.)

February 22, 2001.

Martin A. Lerner of counsel (Freed & Lerner, attorneys), for respondents.

Benjamin M. Zuffranieri, Jr., of counsel (Stephen A. Aschettino, Kathleen Sellers and Jeffrey C. Stravino on the brief; Hodgson, Russ, Andrews, Woods & Goodyear, L. L. P., attorneys), for appellants.

ROSENBERGER, MAZZARELLI, RUBIN and BUCKLEY, JJ., concur.

OPINION OF THE COURT

SULLIVAN, P. J.

At issue in this personal injury and wrongful death action arising out of a fire that occurred in an apartment occupied by the deceased and his family is the propriety of denying summary judgment to the owner landlords of the building.

The fire occurred on April 25, 1991 in apartment 5A at 620 West 147th Street in Manhattan, occupied since 1968 by the deceased, Rigel Acevedo, and his wife Carmen, who, in 1992, died of unrelated causes. No claim of injury is made in her behalf. The deceased died on July 15, 1991, while still hospitalized from injuries sustained in the fire. Neither the deceased nor his wife was ever deposed with respect to this incident. A granddaughter, Carmen Concepcion, Carmen's daughter, a former foster child and one adopted daughter also resided in the apartment at the time. Plaintiff Sonia Acevedo, the deceased's daughter and Concepcion's mother, who did not reside in the apartment at the time of the incident, is the administratrix of the deceased's estate.

According to the Fire Department's investigation report, the fire originated in the bedroom, caused "probably [by the] careless use of smoking materials." During the two-week period prior to the fire, painters, alleged to be independent contractors hired by the owners or their managing agent, had been observed working in the Acevedo apartment. A witness had seen a painter, on one occasion, smoking outside of the apartment. No evidence was presented as to whether the painters were in the Acevedo apartment on the day of the fire, much less that a painter was smoking in the apartment on that day.

Plaintiff disputes the owners' claim that the apartment was equipped with a smoke detector on the day of the fire. The owners offered, as evidence thereof, a copy of a receipt signed by the deceased on October 28, 1981 acknowledging the installation of such a device in the apartment. In his deposition, Martin Levine, one of the owners of the building, testified that after the fire he observed smoke detectors in apartment 5A on the foyer ceiling near the kitchen entrance and on the foyer ceiling at the back of the apartment where the bedrooms are located.

Plaintiff's proof in this regard consists of a Fire Department Referral Report stating that smoke detectors were missing throughout the building. The same report indicates however, that despite the fact that a number of apartments did not have smoke detectors, "[s]everal smoke detectors activated during the fire." Also, in her deposition, Carmen Concepcion could not recall seeing smoke detectors in the apartment. Finally, on this point, plaintiff cites a fire marshal's report, apparently in some type of code, stating "L34 directed to forward report for absence of smoke detectors."

After the completion of discovery, the owners moved for summary judgment dismissing the complaint, alleging, inter alia, that a smoke detector had been installed in the Acevedo apartment in accordance with the Administrative Code of the City of New York, which imposes upon the tenants, not the owners, the responsibility for the repair and replacement of such detectors, once installed; the failure, in any event, to show that the absence of a smoke detector was a proximate cause of the deceased's injuries and death; and the absence of any proof that the fire was caused by the negligence of third parties hired by the owners. The third-party defendant, Hudson View Associates, Inc., the managing agent of the building at the time of the accident, cross-moved for the same relief. The IAS Court denied the motions, finding that "[t]he record presents triable issues of fact, including whether smoke detectors were installed in the apartment as required by the Administrative Code and whether painters, allegedly employed by defendants, were negligent." This appeal followed.^[1] We reverse.

New York City Housing Maintenance Code (Administrative Code) § 27-2045, which regulates the rights and duties of owners and tenants with respect to the installation and maintenance of smoke detectors, makes clear that the owner's sole obligation, subject to certain exceptions, not here applicable, contained in paragraphs (3) and (4) of subdivision (a) of the section,^[2] is to "provide and install one or more approved and operational smoke detecting devices in each dwelling unit" (§ 27-2045 [a] [1]). Subject to the same inapplicable exceptions, the owner, having complied with the duty to provide and install such devices, is not required to keep and maintain the detectors in good repair or to replace a device that is stolen, removed, missing or rendered inoperable. (Administrative Code § 27-2045 [c].) In such circumstances, it is the "sole duty" of the occupant of the dwelling unit to "(1) keep and maintain [the smoke detecting] device in good repair; and (2) replace any and all devices which are either stolen, removed, missing or rendered inoperable during the occupancy of [the] dwelling unit." (Administrative Code § 27-2045 [b].)

As this record discloses, smoke detector devices were installed during the Acevedos' tenancy. As noted, Mr. Acevedo signed a 1981 receipt, whose signature thereon was identified as his by his daughter, the plaintiff herein, acknowledging that a smoke detector had been installed. In affidavits, both of the owners attested that the receipt was kept in the regular course of business in the tenant file for the Acevedo apartment.

In opposition to the owners' summary judgment motion, plaintiff argued that the receipt showing that Mr. Acevedo had acknowledged the installation of a smoke detector device in 1981 was not competent evidence since it violated CPLR 4519, known as the "Dead Man's Statute." Unquestionably, "evidence excludable under the Dead Man's Statute should not be used to support summary judgment." (Phillips v Kantor & Co., 31 NY2d 307, 313.) And, while the Dead Man's Statute would bar the owners, as interested witnesses under CPLR 4519, from expressing an opinion as to the genuineness of the deceased's handwriting (see, Wilber v Gillespie, 127 App Div 604), there is no suggestion that such testimony is expected or necessary in this case.

The Dead Man's Statute does not, by its terms, prohibit the introduction of documentary evidence against a deceased's estate. On the contrary, an adverse party's introduction of a document authored by a deceased does not violate the Dead Man's Statute, as long as the document is authenticated by a source other than an interested witness's testimony concerning a transaction or communication with the deceased (see, Kiser v Bailey, 92 Misc 2d 435; Yager Pontiac v Danker & Sons, 41 AD2d 366, affd 34 NY2d 707).

Here, the deceased's daughter conceded at her deposition that the signature on the receipt is that of her deceased father. This evidence authenticated the document (see, Prince, Richardson on Evidence § 9-103 [d]; § 7-318 [a] [Farrell 11th ed]), and, not being testimony concerning a transaction or communication with the deceased, it did not fall within CPLR 4519's prohibition. Additionally, given plaintiff's status as representative of the estate, her testimony cannot be deemed to have been given against the estate in violation of the Dead Man's Statute (see, Brezinski v Brezinski, 84 AD2d 464, 468 [testimony of defendants who were called by plaintiff not barred by Dead Man's Statute since their interests were adverse to plaintiff and not adverse to the interests of the deceased]).

Plaintiff's other arguments as to the genuineness of the receipt are speculative and ignore the reality that the deceased's signature has been identified. That the other entries on the document appear to have been written by a different hand and in ink of another color is of no consequence. The same is true even as to the other documents from the tenant's file that are conceded to be genuine. Moreover, as even the untutored eye can readily recognize, the signature on another document signed by the deceased, not challenged as to its genuineness, is identical to the signature on the...