E. B.-W. v. N.Y.C. Hous. Auth.

185 A.D.3d 458

127 N.Y.S.3d 469

E. B.-W., an infant BY her mother and natural guardian Dominique BOU, et al., Plaintiffs–Respondents,

v.NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.

11797

M-1182

Index 350031/15

Supreme Court, Appellate Division, First Department, New York.

ENTERED: JULY 9, 2020

Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant.

Greenberg & Stein, New York (Ian Asch of counsel), for respondents.

Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.

Order, Supreme Court, Bronx County (Llinet M. Rosado, J.), entered on or about July 18, 2019, which, to the extent appealed from, denied defendant's motion for summary judgment dismissing the complaint insofar as predicated on its alleged violation of Administrative Code of City of N.Y. § 27–809, unanimously affirmed, without costs.

Defendant failed to establish prima facie that Administrative Code § 27–809 did not apply to the building in which infant plaintiff's accident occurred. Defendant's Director for Capital Projects Administration failed to explain how he arrived at his conclusion, or to submit documentation in support thereof, that the building does not fall within an exception to the Code's grandfathering rule, namely where alterations made to the building cost at least thirty percent of the building's value (Administrative Code §§ 27–115, 27–116). Moreover, he compared "the value of each unit at the time the alterations were performed [with the] average cost of work per unit," and therefore did not establish whether "the cost of making alterations" equaled or exceeded thirty percent of "the value of the building," which is the standard set by the statute (Administrative Code §§ 27–115, 27–116; see Zabawa v. Sky Mgt. Corp., 183 A.D.3d 430, 431, 123 N.Y.S.3d 577 [1st Dept. 2020] ; White v. New York City Hous. Auth., 139 A.D.3d 579, 32 N.Y.S.3d 140 [1st Dept. 2016] ; but see Ebron v. New York City Hous. Auth., 177 A.D.3d 530, 114 N.Y.S.3d 55 [1st Dept. 2019] ). To the extent Ebron can be construed as supporting a contrary position, we clarify that White is and has been the rule regarding defendant's burden on a prima facie case. Since defendant failed to meet its initial burden, the motion must be denied without regard to the sufficiency of plaintiffs' papers in opposition (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).

Defendant also failed to establish prima facie that, even if Administrative Code § 27–809 applied to the subject building, it did not violate the ordinance because the pipe did not need to be insulated, since it "carrie[d] a fluid not exceeding two hundred fifty degrees Fahrenheit and insulation would [have] interfere[d] with the functioning of the system." The affidavits of defendant's engineer submitted on this issue were notarized without the state and not accompanied by the requisite certificate of conformity, and "the technical defect was not corrected, despite plaintiff[s'] timely objection in opposition to defendant['s] motion" ( Attilio v. Torres, 181 A.D.3d 460, 461, 121 N.Y.S.3d 25 [1st Dept. 2020] ; see CPLR 2309[c] ). Were we to disregard the technical nonconformity and consider the...