Lindsey v. H.B. Assoc., L.L.C

In Lindsey v. H.B. Assoc., L.L.C. (24 AD3d 274 [1st Dept 2005] the court affirmed denial of a defendant's motion for summary judgment in an action alleging scalding of an infant plaintiff by bath water. The court held that "[i]ssues of fact as to defendant's negligence in maintaining the building's hot water system [were] raised by the affidavit of the infant's treating physician that the water temperature must have been approximately 150 degrees to have caused the second- and third-degree burns that the infant sustained." (Id. at 274.) The court cited a Third Department decision (see Tirella v. American Props. Team, Inc., 145 AD2d 724 [3d Dept 1988]) that had held that "the affidavit of plaintiff's physician stating that the water temperature must have been at least 149 degrees Fahrenheit to cause plaintiff's burns . . . creat[ed] a triable issue of fact as to the negligence of the owners and manager in their control and maintenance of the hot water system" (id. at 725.) (See Lindsey v. H.B. Assoc., L.L.C., 24 AD3d at 274.) There is no indication in either Lindsey or the cited Third Department decision that a regulatory standard was at play.