Sonia Ramirez et al., Respondents, v. New York City Housing Authority, Appellant, et al., Defendants

Sonia Ramirez et al., Respondents, v New York City Housing Authority, Appellant, et al., Defendants. [3 NYS3d 592] [MAJORITY] Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered May 29, 2014, which denied defendant New York City Housing Authority’s motion for summary judgment dismissing the complaint, unanimously modified, on the law, to dismiss plaintiffs claims arising from defendant’s discretionary act in providing plaintiffs family the sixteenth floor apartment, and otherwise affirmed, without costs. The motion court correctly determined that issues of fact exist concerning whether defendant had either actual or constructive notice of the elevators’ perpetually broken down condition and whether defendant’s negligence contributed to the malfunctioning of both elevators the night of plaintiffs decedent’s death. We modify the order, however, because plaintiff may not maintain a cause of action against defendant for its discretionary decision to grant plaintiff housing on the sixteenth floor of the apartment building. It is well settled that defendant has broad discretion to set, among other things, the terms of occupancy of its apartments (see e.g. Matter of Gutierrez v Rhea, 105 AD3d 481, 486 [2013], lv denied 21 NY3d 861 [2013]). We have considered the remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Friedman, Sweeny, Gische and Kapnick, JJ.