When a landlord tries to fulfill its duty to maintain its premises in a reasonably safe condition, it is not enough to simply rely on what a court may have said a few years earlier.  In Nina W. v. NDI King Ltd. P’ship, the plaintiff was a five year old girl who suffers from cerebral palsy and intellectual disability, condition formerly called mental retardation.  On her behalf, her mother filed suit in the Bronx Supreme Court, alleging that while the girl was sleeping in a bottom bunk bed, she suffered severe burns after her face and hands came into prolonged contact with an uncovered baseboard radiator.

The defendant landlord moved for summary judgment, relying on Rivera v. Nelson Realty, a 2006 Court of Appeals case which held that “the landlord of a home where children live does not have a common-law or other duty to provide or install radiator covers,” even in situations where the tenant requested one.  The Bronx Supreme Court granted the landlords motion, in reliance on Rivera; however, the First Department reversed.

The Court noted that, unlike the freestanding radiator in Rivera, the radiator in Nina W. was a baseboard heater which “came with covers” that were removed by the landlord because they were rusty, and never replaced.   In addition, the plaintiff in Nina W. was especially diligent in that she kept in contact with the New York City Department of Housing Preservation, which led to violations being issued.

As Of Interest has noted before, courts sometimes hand down surprising victories for property owners and other defendants.  Sometimes those victories, like the defendant’s in Rivera, appear to be the proverbial “slam dunk” in hindsight.  But Nina W. serves as a useful reminder that no two cases are alike, and no matter how sweeping a prior decision appears on the surface, it is no safe harbor for property owners to be complacent.  If anything in a tenant’s apartment, especially something that could be dangerous, does not look like it is supposed to, a landlord would be well advised to spend the penny on a repair to avoid spending a pound (and a lot more than that) in litigation.

Thanks to Mike Gauvin for his contribution to this post. If you have any questions, please email Paul at .