Brown v 2732 Bainbridge Assoc., LLC, 2011 NY Slip Op 07678 [89 AD3d 410]

November 1, 2011

Appellate Division, First Department

— [*1]

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Stacy I. Malinow of counsel), for appellant.

Raymond Schwartzberg & Associates, PLLC, New York (Raymond B. Schwartzberg of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered July 7, 2010, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish prima facie that it properly maintained the water heating system in its building and that it had no actual or constructive notice of the alleged hazardous condition, that plaintiff was the sole proximate cause of her injury, or that the injury resulted from a normal fluctuation in the water temperature in the bathtub ( see Boderick v R.Y. Mgt. Co., Inc. , 71 AD3d 144 , 147 [2009]). Defendant submitted no evidence to support its contention that plaintiff was injured as a result of a normal fluctuation in the water temperature. Its superintendent testified that plaintiff’s mother had complained to him about the unregulated water temperature in the bathroom and that before the date of plaintiff’s injury he had repaired the hot water seals in the shower and the seals and gaskets in the bathtub faucet. Concur—Gonzalez, P.J., Tom, Sweeny, Renwick and RomÁn, JJ..