Rivera v. Nelson Realty, LLC

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 16, 2004, which denied defendants’ motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

The infant plaintiff allegedly burned himself when, at the age of three, he came into contact with a radiator in his family’s apartment. This action seeking damages for the infant plaintiffs injuries, and those of his mother, was subsequently commenced against the entities that own and manage the apartment building (collectively, the landlord). Elaintiffs’ primary theory of liability is that the landlord breached its nondelegable duty under Multiple Dwelling Law § 78 (1) to maintain the premises in a reasonably safe condition (see Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 643 [1996]) by failing to place a cover over the radiator.

Plaintiffs do not allege that the radiator malfunctioned in any way; they simply argue that a jury could find that the radiator should have been covered so as to prevent young children from touching it. The uncovered radiator does not, however, constitute the type of hazardous condition of which actual or constructive notice would expose a landlord to common-law liability under Juarez. Thus, notwithstanding the tenant’s complaints in this case, it was not the landlord’s duty to provide a cover for *317the radiator. Accordingly, we reverse and grant the landlord summary judgment (see Rodriguez v City of New York, 20 AD3d 327 [2005]; Bernstorff v Title Guar. & Trust Co., 269 App Div 708 [1945] [dismissing, on the ground that there was “no actionable negligence,” a complaint seeking recovery for burns a child sustained when she came into contact with a radiator]).

Plaintiffs also make a secondary argument that an issue exists as to whether the radiator in question complied with section 27-809 of the Administrative Code of the City of New York. That provision does not, however, have any relevance to this matter. The portion of section 27-809 on which plaintiffs rely provides that “accessible piping in habitable and occupiable rooms carrying steam, water, or other fluids at temperatures exceeding one hundred sixty-five degrees Fahrenheit shall be insulated to prevent the temperature at the outer surface of the insulation from exceeding sixty degrees Fahrenheit above the ambient temperature” (emphasis added). Administrative Code § 27-809 states that it applies to “piping,” and makes no reference to radiators. This strongly suggests that radiators are not within the scope of the provision, since the word “piping” is not usually understood to include radiators. Concur—Buckley, RJ., Mazzarelli, Friedman and Catterson, JJ.