Colon v. Mandelbaum , 664 N.Y.S.2d 302 ( 1997 )

—Order, Supreme Court, New York County (Charles Ramos, J.), entered on or about April 1, 1996, which denied defendants-appellants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The infant plaintiff was allegedly scalded when he fell into a bathtub with excessively hot water. Defendants seek summary judgment first on the ground that as out-of-possession landlords they owed no duty to plaintiffs to maintain the water heater supplying the water because the lease provided that it was the tenant’s responsibility to maintain fixtures. While such a lease provision is certainly evidence that defendants lacked the control over the heater necessary to make them liable for a failure to repair it, it is not dispositive of the issue of control, which “may be established by proof of the landlord’s promise, either written or otherwise, to keep certain premises in repair * * * or by a course of conduct demonstrating that the landlord assumed responsibility to maintain a particular portion of the premises” (Gelardo v ASMA Realty Corp., 137 AD2d 787, 788 [citations omitted]). Plaintiffs assert that they made complaints to defendants about excessively hot water throughout the period of their occupancy and that defendants promised to rectify the problem; defendants acknowledge that notwithstanding the lease, it was their practice to make repairs at the tenant’s request, and in fact they had performed bathroom repairs in the past. Under these circumstances, an issue of fact exists as to whether defendants assumed responsibility for the repair of the water heater. Also an issue of fact precluding summary judgment is whether plaintiffs’ failure to supervise the then 20-month-old infant was a superseding cause of the accident (see, Billsborrow v Dow Chem., 177 AD2d 7, 17; cf., Parker v New York City Hous. Auth., 203 AD2d 345). Concur—Milonas, J. P., Rosenberger, Rubin, Williams and Colabella, JJ.