Living in New York City offers unmatched opportunities and experiences. There are, of course, trade-offs – high rents, small living spaces, and old infrastructures. Residents do the calculus and decide that living in New York justifies these downsides. Unfortunately, living in an older building can present additional considerations, including maintenance concerns and structural issues which, can lead to lawsuits.
In Daly v. 9 East 36th LLC, the Appellate Division, First Department affirmed the lower court’s denial of defendant’s summary judgment motion. The apartment building was built in the 1930’s and there was no evidence that any interior electrical upgrade had ever been performed. On June 19, 2013, plaintiff, a tenant in the building, sustained personal injuries from a fire in his rent-stabilized studio apartment. The Fire Incident Report of the fire department’s Bureau of Fire Investigation found that the fire originated in an area of electrical wiring and noted multiple extension cords plugged in to one outlet with a power strip.
Before the fire plaintiff had on multiple occasions requested to the building superintendent that more outlets be installed and showed the existing outlets were in disrepair. Plaintiff utilized extension cords for many of his appliances as a result. Plaintiff purportedly also complained that the fuses in the apartment would blow and shut down the electric in his apartment and occasionally the building. The super testified that he had conversations with the plaintiff regarding updating the electrical system and that the defendant had repeatedly refused to make repairs due to costs.
The court denied the defendant’s motion for summary judgment finding that there was a triable issue of fact as to whether defendant had actual or constructive notice that a dangerous condition existed in plaintiff’s apartment that it failed to remedy, specifically that plaintiff’s expert opined that the building’s 1930’s electrical system constituted a dangerous condition and whether there was notice of the same. The majority of found that the building owner had a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others and that it was an issue of fact whether defendant’s decision not to upgrade the electricity kept the apartment reasonably safe. The majority was unwilling to conclude as a matter of law that plaintiff’s lifestyle and electrical consumption were above and beyond the reasonable needs of any modern tenant.
The dissent argued that the plaintiff should have adapted his electrical usage to the building’s limitations rather than seek any kind of upgrade. Further, the dissent noted that the absence of any evidence that the building’s wiring did not meet code standards or was otherwise defective, no basis exists for imposing liability for declining to upgrade the building’s wiring to suit plaintiff’s electrical usage.
The dissent’s arguments appear reasonable and account for a common sense approach. However, the majority, in allowing the matter to proceed, put considerable weight on the plaintiff’s expert testimony in spite of the fire marshal’s finding. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions.