Machado v. Clinton Housing Development Co.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered February 4, 2004, which granted the corporate defendants’ motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment as to liability, affirmed, without costs. Plaintiffs are shareholders and residents of a cooperative apartment owned and managed by defendants. When plaintiff Lorenza Machado saw a leak coming from her bathroom sink’s hot water faucet and the hot water valve next to the sink, she called the managing agent who advised her to turn off the water. After turning the valve for about five minutes, it “exploded”; the handle came off in plaintiff’s hand and she was sprayed with hot water and scalded. The proprietary lease clearly provides that the maintenance and repair of fixtures, including exposed plumbing (i.e., pipes that are not “within the walls”) and the fixtures to which they are attached, are the sole responsibility of the shareholder. Plaintiffs’ initial argument that the fixture was “inside the wall” is belied by the photographic evidence. Nor does the fact that the valve connects to a piece inside the wall shift responsibility for its maintenance to the co-op. Plaintiffs’ expert’s affidavit, describing their bathroom over two years after the accident, is not probative of its state on the accident date (see Gilson v Metropolitan Opera, 15 AD3d 55, 59 [2005]; McGarvey v Bank of N.Y., 7 AD3d 431, 432 [2004]). In any event, even assuming a timely inspection, it is wholly [308] conclusory, devoid of evidentiary facts, and, thus, insufficient to raise a triable issue (see Murphy v Conner, 84 NY2d 969, 972 [1994]; Gerber Trade Fin., Inc. v Skwiersky, Alpert & Bressler, LLP, 12 AD3d 286 [2004], lv denied 4 NY3d 705 [2005]; Jackson v Dresser Indus., Inc., 257 AD2d 538 [1999]). The affidavit states “Mrs. Machado was sprayed with hot water because the valve stem, which prior to the accident had been seated in the valve body, . . . became unseated and disengaged from the valve body.” It concludes “the valve stem, which is intact, should not have become unseated and disengaged from the valve body . . . by turning the valve handle to the right.” The affidavit offers no facts to justify its purported support for plaintiffs’ version of how the accident occurred and indeed actually appears significantly at variance with plaintiffs’ account. We respectfully differ with the dissent that “[t]here is simply no evidence to support this view that scalding water could somehow transit a solid brass valve stem and injure [Mrs. Machado]” as it ignores plaintiffs’ own claim that water leaked from the faucet and valve. We reject plaintiffs’ belated argument that the leak was actually in the wall because it directly contradicts Mrs. Machado’s earlier deposition testimony that the water was leaking from both the bathroom faucet and valve (Gloth v Brusco Equities, 1 AD3d 294 [2003]). We also reject plaintiffs’ reliance on the co-op’s subsequent repair of the valve without charge as proof of its duty to repair, because the lease specifically forbids oral modification and waiver. Even if defendants had a duty to repair the valve, there was no evidence of negligence by the co-op. Concur—Friedman, Marlow and Gonzalez, JJ.