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Mannor v Feldstein 2012 NY Slip Op 30210(U) January 26, 2012 Sup Ct, NY County Docket Number: 104156/09 Judge: Manuel J. Mendez Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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ANNED ON 113112012

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SUPREME COURT OF THE STATE OF NEW YORK
PRESENT:

- NEW YORK COUNTY
13

J, MENDEZ Justlce

PART

DR. SHLOMO MANNOR, MAROALIT MANNOR and DR. DANA MANNOR,
Plrlntlff(s),

INDEX NO.: 104158/09

-vRICHARD FELDSTEIN, SHARON FELDSTEIN, 605 APARTMENT CORP. and RUDD REALTY MANAGEMENT CORP.,
Defondant(r) ,

Plaintiffs, the owner and tenant8 of 605 Park Avenue, New York, NY, a cooperative apartment, #IA, used as a medical office, brought this action to recover for property damages incurred from flooding of the unit. The flooding occurred as a result of a broken toilet valve in the master bedroom of apartment, #2C, the unit dlrectly above apartment #IA. Rlchard Feidstein and Sharon Feidstein (hereinafter referred to as "the Feldstelns") are the proprletary lessees of apartment #2C. 605 Apartment Corp. (hereinafter referred to as "605") Is the proprietary lessor and owner of the building. Rudd Realty Management Corp., (hereinafter referred to as "Rudd Realty") is the management company acting on behalf of 605, in charge of maintenance and repairs of the building. Motlon sequence 001, Is 605 and Rudd Realty's motion for summary judgment pursuant to CPLR 53212, seeking an Order dismissing ail causes of action and crossclaims against them based on the provisions of the proprietary lease. 605 and Rudd Realty claim that pursuant to the proprietary lease the Feldsteins are solely liable for maintenance of the toilet and that the reservation of right of reentry does not apply to the toilet valve which is not a slgniflcant structural or design defect. Plaintiffs oppose 605 and Rudd Realty's motlon claiming that there remain issues of fact eoncernlng their fallure to respond to the lncldent in a timely manner and r their fallure to use proper methods o procedures to dlrnlnish damages to the property. Plaintiffs also claim that 605 and Rudd Realty dld not use personnel wlth the proper skills or expertise to handle the incident. Motion sequence 002, is the Feidsteins motlon for summary judgment pursuant to CPLR 53212, seeking an Order dlsmlsslng all the causes of actlon and cross-clalms against them. The Feldsteins claim that after purchasing apartment # 2C in January of 2006, they did not reside there through the date of the incident. The Feldsteins also claim that a walk-through of the apartment at or before the date of the closing Indicated

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that the fixtures, including the tollet, functioned normally and they dld not create, have constructive notice, or the opportunity to correct, the condltlon. plaintiffs oppose the motlon clalming that the Feldstelns are llable based on the doctrine of res Ipsa loquitur and the provlslons of the proprietary lease. Plalntlffs also claim that the Feldstelns breached thelr legal duty and were negllgent In falling to perform a proper lnspectlon of the bathroom fixtures and toilets when they purchased the apartment and should have had a quallfled, licensed plumber present. Plalntiffs cross-move pursuant to CPLR

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