Pintor v. 122 Water Realty, LLC

• Decision Date: 08 December 2011
• Citation: 90 A.D.3d 449,933 N.Y.S.2d 679,2011 N.Y. Slip Op. 08814
• Parties: Ignacio PINTOR, Plaintiff–Respondent, v. 122 WATER REALTY, LLC, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08814

90 A.D.3d 449

933 N.Y.S.2d 679

Ignacio PINTOR, Plaintiff–Respondent,

v.122 WATER REALTY, LLC, et al., Defendants–Appellants.

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

Dec. 8, 2011.

Conway, Farrell, Curtin & Kelly P.C., New York (Jonathan T. Uejio of counsel), for appellants.

The Mandel Law Firm, New York (Donald T. Ridley of counsel), for respondent.

FRIEDMAN, J.P., CATTERSON, MOSKOWITZ, FREEDMAN, ABDUS–SALAAM, JJ.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered March 30, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

In this premises liability action, the events leading to plaintiff Ignacio Pintor's injury are largely undisputed. On November 11, 2008, Pintor, a real estate agent, traveled to an apartment building located at 122 Water Street in New York City to show an apartment to a prospective tenant. After the client called to say he would be late for his appointment, Pintor decided to use the spare time to take photographs of vacant apartments in the building to show other clients.

Pintor entered the bedroom in a vacant apartment on the fourth floor, and stood about one foot away from a window with his back turned to it. As he took a photograph, he heard a cracking sound and turned to see part or all of the upper portion of the window falling toward his face. As Pintor raised his arm to protect himself, the glass shattered against his hand and badly cut it.

In July 2009, Pintor commenced this action sounding in negligence against the building owner, 122 Water Realty, and its managing agent, IMK Management. After discovery, defendants moved for summary judgment on the ground that they neither created the defective condition in the apartment window nor had any notice of it. In support of their motion, defendants submitted the affidavit of the president of IMK Management, who averred that, pursuant to the company's policy, he had inspected the fourth-floor apartment after the previous tenants vacated it on August 31, 2008, and had not observed any defects in any of its windows. The president also stated that he had not been notified of any problem with the apartment windows before the accident, and that neither he nor any other IMK Management employee had ever repaired the windows.

Defendants also submitted the affidavit of a managing partner of the nonparty realty company that employed plaintiff. The partner stated that, from the time the fourth-floor apartment became vacant at the end of August 2008 through the date of plaintiff's accident in mid-November, at least five of the company's realtors had showed the apartment to clients, and at least 15 prospective tenants per week had looked at it. Moreover, the partner stated, he had never noticed any defect in any of the apartment's windows, and had never received any complaints about the condition of the apartment.

In its March 2011 order denying summary judgment to defendants, the motion court found that the record presented an issue of fact whether defendants had notice of the window's defective...