Wade Clark Mulcahy LLP

It is not surprising that a property owner is not responsible for a latent defect on their property that they would not discovery upon reasonable inspection. However, once they become aware of that defect and fail to fix it, THEN they risk liability. Damages caused by this latent defect which occurred before the landowner was made aware of it will not lead to liability against them, but hose after they become aware of it may.

This was the primary issue in Huang v. Fort Greene Partnership Homes Condominium. Trista Huang was a property owner next to Fort Greene Partnership Homes Condominium, a collection of condominium units. On September 27, 20143, water began flowing into Huang's basement through the wall adjacent to Fort Greene's property. It was not until October 9, 2014, that the New York City Department of Environmental Protection (DEP) discovered that the cause of the water was a broken water service line in the Fort Greene's property. Although the DEP served Fort Greene with a three-day notice to repair the line, water continued flowing onto Plaintiff's property for another week, only ending on October 17, 2013, when the line was fully repaired.

Defendants eventually moved for summary judgment to dismiss the complaint in its entirety. While this was initially denied by the trial court, the Appellate Division Second Department reversed most of this decision. The Appellate Division dismissed the negligence claim for damage prior to October 7, 2014, when Huang first emailed the Fort Greene about the water, because it found the broken water line was a latent problem, but they affirmed the denial as to negligence for after that day because Fort Greene now had notice of the problem, and the Court evidence they may have delayed repairing the damage.

The main lesson to be learned from this case: Once a latent defect rears its ugly head, fix it. You are only shielded from liability due to latency until it's not latent anymore.