This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A building owner that asks a court to dismiss an injury claim before trial must first show that it did not create the problem and did not know, and should not have known, about it, and its own evidence can undercut that showing. Here, the First Department affirmed the denial of an owner’s motion in a resident’s ceiling collapse case, because the owner itself submitted the resident’s testimony that the building’s manager and superintendent had seen mold on his bathroom ceiling two to three months earlier and painted over it.
The case
- Court
- Appellate Division, First Department
- Decided
- October 27, 2026
- Case
- Martinez v 561 W. 144 Realty LLC
- Citation
- 2026 NY Slip Op 06251
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff lived in a building owned by the defendant, 561 W. 144 Realty LLC, and alleged that a defective ceiling injured him when it collapsed. The owner moved for summary judgment dismissing the complaint, relying in part on the building superintendent’s testimony that before the collapse no one had complained of a leak in the unit above the plaintiff’s apartment. The Supreme Court, New York County, denied the motion, and the owner appealed.
The holding
The First Department unanimously affirmed. The owner “did not sustain its initial burden of demonstrating it did not cause, create, or have actual or constructive notice of the defective ceiling that allegedly injured plaintiff” (2026 NY Slip Op 06251, *1). As for the superintendent’s testimony that no one had complained of a leak in the unit above before the collapse, “[w]hile this testimony, standing alone, may have been sufficient to establish defendant’s prima facie burden, defendant also submitted plaintiff’s deposition testimony, which rebutted the superintendent’s account” (id.). He testified that about two to three months before the incident, the manager and superintendent saw mold on his bathroom ceiling, and “instead of cleaning the mold and finding the cause of it, they painted over it” (id.). “This testimony creates a triable issue of fact as to whether defendant knew about moisture in plaintiff’s apartment and therefore had notice of a defect” (id.). The owner’s point that he had first thought the mold was dirt “at most raises a credibility question not properly resolved on summary judgment” (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decision in Duley v S&N Rugova Props. LLC (236 AD3d 544).
What it means
- Notice is often the key question in a building case: did the owner know about the problem, or did it exist long enough that the owner should have known?
- Signs of moisture that the building’s staff saw may be evidence that the owner knew of a defect.
- An owner’s motion can fail on its own papers. Here, the owner submitted the resident’s testimony, and that testimony raised the question of fact.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
The same court, the same day, reached the opposite result in Santana v Emerald 85-87 Vermilyea, LLC (2026 NY Slip Op 06266), where a man alleged that the front of a marble landing broke as he walked down the stairs of an apartment building. There, the defendants showed that the defect was not visible or apparent and that a reasonable inspection would not have revealed that the step could break, and he testified that he used the stairs several times a day without noticing any problem. The difference was what could be seen. Painting over a stain is like covering a warning light on a car’s dashboard: the light is gone, but whatever turned it on may still be there. Two lessons. 1. If you rent, report leaks, stains, mold, or a sagging ceiling to the landlord in writing, keep a copy, take dated photos, and use a “tenant portal” or something similar to report complaints, if your building offers one; if someone comes and paints over it, write down when and who. Get legal advice promptly if you are hurt. 2. For lawyers, read every exhibit in the owner’s motion; sometimes the owner’s own papers raise the question of fact. What the staff saw can matter as much as what the tenant reported.
Topics
Court: First Department. Year: 2026. Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 27, 2026. Posted October 28, 2026.
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