Lozano v. Mt. Hope Place Properties, Inc. , 34 N.Y.S.3d 893 ( 2016 )

Lozano v Mt. Hope Place Props., Inc. (2016 NY Slip Op 05545)

Lozano v Mt. Hope Place Props., Inc.

2016 NY Slip Op 05545

Decided on July 14, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 14, 2016
Tom, J.P., Andrias, Manzanet-Daniels, Kapnick, Gesmer, JJ.

819 308544/10

[*1]Juan Lozano, Plaintiff-Appellant,

v

Mt. Hope Place Properties, Inc., et al., Defendants-Respondents.

Gorayeb & Associates, P.C., New York (Mark H. Edwards of counsel), for appellant.

Babchik & Young, LLP, White Plains (Matthew J. Rosen of counsel), for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 20, 2015, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established entitlement to judgment as a matter of law in this action where plaintiff alleges that he was injured when a portion of the bathroom ceiling in his apartment fell on his head. Defendants demonstrated that they had no notice of the alleged defective condition that caused the ceiling to collapse by submitting the deposition testimony of the building superintendent and plaintiff that there were no prior leaks or water staining present on the bathroom ceiling in the months

prior to the accident (see Brown v Howson, 129 AD3d 570 [1st Dept 2015]; Figueroa v Goetz, 5 AD3d 164, 165 [1st Dept 2005]).

In opposition, plaintiff failed to raise an issue of fact. Plaintiff does not contest that the underlying cause of the ceiling collapse was a bathtub overflowing in an apartment located two floors above earlier that day. Plaintiff presents nothing beyond mere speculation to support his assertion that the accident was related to defendants' prior repairs of the ceiling because there is nothing in the record to suggest that the condition that necessitated the prior repairs may have contributed to the leak (see Figueroa at 165).

We have considered plaintiff's remaining arguments, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 14, 2016

CLERK