Harvey Kent et al. v. Stephen Bernstein et al.

Summary

The Appellate Division, First Department affirmed the denial of defendants' motion for summary judgment in a dispute arising from water damage to a cooperative apartment caused by a clogged roof drain. The court held that defendants had not established, as a matter of law, waiver of the proprietary lease's maintenance requirement and that factual issues remained regarding their common-law duty and response after becoming aware of the leak.

Holdings

1. Defendants failed to establish prima facie entitlement to summary judgment on the ground that the cooperative waived the proprietary lease requirement that defendants maintain the terrace drains, because their evidence did not establish a clear intent by the cooperative to relinquish a known right.
2. Even if the cooperative waived a contractual duty, defendants may still owe a common-law duty to maintain the roof drain as part of their general duty to protect against dangerous conditions on their property.
3. Conflicting testimony created an issue of fact as to whether defendants failed to timely address the leak after becoming aware of it by attempting to cure it or notifying building staff.
4. Defendants' lack of prior experience with a blocked drain or notice of deteriorated flashing before the storm did not resolve the negligence issue because the salient question was whether Stephen acted negligently after becoming aware of the leak.

Questions Presented

1. Whether defendants established as a matter of law that the cooperative waived the proprietary lease requirement that defendants maintain the terrace drains.
2. Whether defendants could still owe a common-law duty to maintain the roof drain even if the cooperative waived a contractual duty.
3. Whether conflicting testimony created an issue of fact as to whether defendants timely addressed the leak after becoming aware of it.
4. Whether defendants were entitled to summary judgment based on their lack of prior notice of a drain blockage or deteriorated flashing.

Disposition

affirmed