The Rogak Report: 30 April 2004
- APARTMENT OWNER NOT RESPONSIBLE FOR CEILING COLLAPSE CAUSED BY
UPSTAIRS TENANT'S FLOODING OF APARTMENT
Figueroa v. Goetz et al., 774 NYS2d 9 (1st Dept 2004)
Plaintiff, a building superintendent in a co-op building, was injured
when a 3' x 3' piece of plaster fell on him as he bent over in the
waiting room of one of the apartments to pick up a bucket. The
bucket was filled with water because it had been placed there earlier
to catch the water from a leak in the ceiling. Plaintiff testified
that before he went to remove the filled bucket, he had found water
running from an overflowing bathtub in the apartment directly above,
and that entire apartment was filled with water to a depth of 1
inch. The owner of the lower apartment moved for summary judgment,
arguing that she had never saw water stains in her ceiling and that
the collapse was sudden and unexpected, and not caused by her own
negligence. Supreme Court, New York County, denied the Motion. The
Appellate Division reversed.
"In the case of a ceiling collapse, it is the plaintiff's burden to
show actual or constructive notice of a defect prior to the collapse;
otherwise the complaint must be dismissed. If the claim is that the
ceiling collapsed because of a leak, a plaintiff must show that the
defendant had prior notice, actual or constructive, of the leak and
that the leak was never repaired. Neither has been shown here,"
held the Court. Here, the apartment owner had testified that she had
no prior notice of any damage or defect in the ceiling, and even
plaintiff confirmed that there were no prior leaks in the apartment.
Although there had been a leak in defendant's ceiling some years
before, that leak had been repaired by the building's contractors,
and it was mere speculation to say that the repair of the previous
leak may have contributed to the ceiling collapse.
The lower apartment owner was granted summary judgment.