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The Rogak Report: 30 April 2004

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  • therogakreport
    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)
    Message 1 of 1 , Apr 30, 2004
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      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.
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