Bhandari v. Isis

• Decision Date: 13 November 2007
• Docket Number: 2006-07571.
• Citation: 846 N.Y.S.2d 266,2007 NY Slip Op 08982,45 A.D.3d 619
• Parties: GUARAV BHANDARI et al., Appellants-Respondents, v. MARCELLINO ISIS et al., Defendants, CITY OF NEW YORK, Respondent, and CARMELA NOVELLINO, Appellant.
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 619

846 N.Y.S.2d 266

2007 NY Slip Op 08982

GUARAV BHANDARI et al., Appellants-Respondents, v. MARCELLINO ISIS et al., Defendants, CITY OF NEW YORK, Respondent, and CARMELA NOVELLINO, Appellant.

2006-07571.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided November 13, 2007.

In a consolidated action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Elliot, J.), entered July 6, 2006, as granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it, and the defendant Carmela Novellino separately appeals from so much of the same order as denied that branch of her motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against her in her capacity as executrix of the estate of Angelina DeFranco.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the cross motion of the defendant Carmela Novellino which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against her in her capacity as executrix of the estate of Angelina DeFranco and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant City of New York and the defendant Carmela Novellino, in her capacity as executrix of the estate of Angelina DeFranco, payable by the plaintiffs.

The infant plaintiff Guarav Bhandari lived in a two-family home owned by the estate of Angelina DeFranco, situated next door to a home owned by the defendant Marcellino Isis, which had a swimming pool installed in its backyard. While a three-foot fence divided the backyards of the two homes, there was no gate installed on Isis's property to block access to his swimming pool from an adjacent alleyway. Before the accident, Isis had torn down an old fence previously installed along the property line separating the two properties, as well as a latching gate that had been erected on his property.

A complaint had been registered with the New York City Department of Buildings (hereinafter the Department) in July 2000 that the swimming pool was being constructed without a permit. On October 22, 2000 the infant plaintiff was severely injured when he fell into Isis's swimming pool. Although the Department marked the complaint a "priority B," requiring action within 40 days, it did not investigate the complaint until the day after the accident, several weeks after the 40-day period lapsed, at which time the Department issued a notice of violation against Isis for his failure to install a proper gate near the swimming pool. The infant plaintiff thereafter entered into a persistent vegetative state as a result of the accident and his parents Arun Bhandari and Vijay Bhandari commenced this action.

Contrary to the plaintiffs' contention, Administrative Code of the City of New York § 27-493 (b) contains no implied private...