Opinion
150214/2011
08-06-2019
Bela BAKO and Annika Bako, Plaintiffs, v. Kausar ZAMAN, Kauser Zaman Qualified Personal Residence Trust, Saleem Aftab Tareen, Saleem Aftab Tareen as Trustee of the Kausar Zaman Qualified Personal Residence Trust, Qamar Zaman, and John Doe, Defendants.
John H. Lee Esq., McNicholas & Lee, P.C., 240 West 38th Street, New York, NY 10018, For Plaintiffs Rebecca S. Casas Esq. and William P. Wilson Esq., Law Offices of Karen L. Lawrence, 4 Metrotech Center, Brooklyn, NY 11201, For Defendants
John H. Lee Esq., McNicholas & Lee, P.C., 240 West 38th Street, New York, NY 10018, For Plaintiffs
Rebecca S. Casas Esq. and William P. Wilson Esq., Law Offices of Karen L. Lawrence, 4 Metrotech Center, Brooklyn, NY 11201, For Defendants
Lucy Billings, J.
Plaintiffs seek damages for personal injuries and lost services due to plaintiff Bela Bako's fall when descending the stairs in defendants' home in Montauk, New York, which defendants rented to plaintiffs beginning July 2, 2010. In the evening of July 2, 2010, as Bako descended the stairs from the second floor to the first floor, he lost his balance and reached out with his left hand to grab the ledge of a short wall on his left side, but could not maintain a grip on the wall and fell down the stairs. The stairs were not equipped with any other handrail. Defendants move for summary judgment dismissing the complaint, C.P.L.R. § 3212(b), maintaining that the stairs were safe and free from defects and that, if there was any unsafe or defective condition affecting the stairs, defendants lacked actual or constructive notice of any such condition.
I. APPLICABLE STANDARDS
To obtain summary judgment, defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b) ; Friends of Thayer Lake LLC v. Brown , 27 NY3d 1039, 1043 (2016) ; Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 NY3d 40, 49 (2015) ; Voss v. Netherlands Ins. Co. , 22 NY3d 728, 734 (2014) ; Vega v. Restani Constr. Corp. , 18 NY3d 499, 503 (2012). Only if defendants satisfy this standard does the burden shift to plaintiffs to rebut that prima facie showing by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones , 26 NY3d 742, 763 (2016) ; Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP , 26 NY3d at 49 ; Morales v. D & A Food Serv. , 10 NY3d 911, 913 (2008) ; Hyman v. Queens County Bancorp, Inc. , 3 NY3d 743, 744 (2004). In evaluating the evidence for purposes of defendants' motion, the court construes the evidence in the light most favorable to plaintiffs. De Lourdes Torres v. Jones , 26 NY3d at 763 ; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 NY3d 470, 475 (2013) ; Vega v. Restani Constr. Corp. , 18 NY3d at 503 ; Cahill v. Triborough Bridge & Tunnel Auth. , 4 NY3d 35, 37 (2004). If defendants fail to meet their initial burden, the court must deny them summary judgment despite any insufficiency in plaintiffs' opposition. Voss v. Netherlands Ins. Co. , 22 NY3d at 734 ; Vega v. Restani Constr. Corp. , 18 NY3d at 503 ; Smalls v. AJI Indus., Inc. , 10 NY3d at 735 ; JMD Holding Corp. v. Congress Fin. Corp. , 4 NY3d at 384.
Defendants owned and controlled the premises in which the stairs were located and thus owed a duty to plaintiffs to maintain the stairs in a reasonably safe condition before renting the premises to plaintiffs. Bucholz v. Trump 767 Fifth Ave., LLC , 5 NY3d 1, 8 (2005) ; Caicedo v. Sanchez , 116 AD3d 553, 554 (1st Dep't 2014) ; Paez v. 1610 St. Nicholas Ave. L.P. , 103 AD3d 553, 554 (1st Dep't 2013) ; Alexander v. New York City Transit , 34 AD3d 312, 313 (1st Dep't 2006). Thus defendants may demonstrate their entitlement to summary judgment by establishing the absence of an unsafe or defective condition on the stairs. Cataudella v. 17 John St. Assoc., LLC , 140 AD3d 508, 508 (1st Dep't 2016) ; Acevedo v. Williams Scotsman, Inc. , 116 AD3d 416, 417 (1st Dep't 2014) ; Wright v. Frawley Plaza Houses, Inc. , 107 AD3d 449, 449 (1st Dep't 2013) ; Rivera v. Bilynn Realty Corp. , 85 AD3d 518, 518 (1st Dep't 2011).
The 2008 New York Administrative Code, which was in effect on the date of Bela Bako's injury, required defendants to comply with the 2007 Residential Code of New York State (RCNYS). 19 N.Y.C.R.R. § 1220.1(a) (2008) (amended 2017). Section R311.5.6 of the 2007 RCNYS required stairways with four or more steps to be equipped with at least one handrail 34 to 38 inches above the steps and at least 1.5 inches from the adjacent wall. Circular handrail grips were to measure no more than two inches in diameter; non-circular handrail grips were to measure no more than 6.25 inches around their perimeter. RCNYS § R311.5.6.
II. CONSTRUCTION OF THE STAIRS
Defendants fail to establish that the stairs on their premises were equipped with the required handrail. Both Bela and Annika Bako testified at their depositions that the stairs where Bela Bako fell comprised more than four steps, Aff. of Rebecca S. Casas Ex. E, at 12, Ex. F, at 39, requiring defendants under the 2007 RCNYS to install a handrail on the stairs. RCNYS § R311.5.6.
The handrail that defendants provided failed to comply with the 2007 RCNYS's height, width, and clearance requirements. Defendant Kausar Zaman testified at his deposition that in July 2010 a short wall capped with wood, four feet high and five inches wide, that served as a handrail abutted the staircase between the first and second floors. Casas Aff. Ex. G, at 29-31. Zaman further testified that no other handrail was attached to any wall abutting the staircase. Id. at 30-31. Bela Bako consistently testified that there was no handrail attached to any wall, but there was a "little wall" on one side that was three to five feet high, id. Ex. E, at 14, and capped with wood that was six inches wide. Id. at 33. Thus, whether defendants rely on their witness' testimony or Bela Bako's testimony, no evidence establishes that the stairs on which Bela Bako fell were equipped with a handrail of the required height or width or with the required clearance from the wall.
III. CAUSATION
Finally, defendants fail to establish that the absence of the required handrail did not cause Bela Bako's fall. Bela Bako testified that, as he began to fall down the stairs, he tried to grab the short wall to his left to arrest his fall, but could not grasp his hands around the top of the wall to grip it, and thus could not arrest his fall. Id. at 32-33. Annika Bako testified that, as her husband was falling, he attempted to grab the wall railing, but could not grip it because it was so wide, and therefore fell to the floor. Id. Ex. F, at 32-34, 38. This testimony raises a factual issue whether Bela Bako would have been able to grab a handrail of the required height, width, and clearance to prevent his fall, warranting denial of defendants' motion for summary judgment. Gold v. 35 E. Assoc. LLC , 136 AD3d 453, 453-54 (1st Dep't 2016) ; McLeod v. NDI Webster/Clay Hous. Dev. Fund Corp. , 125 AD3d 506, 507 (1st Dep't 2015) ; Sanchez v. Irun , 83 AD3d 611, 612 (1st Dep't 2011) ; Alvia v. Mut. Redevelopment Houses, Inc. , 56 AD3d 311, 312 (1st Dep't 2008).
IV. CONCLUSION
Based defendants' failure to establish that their stairs were safely constructed according to the applicable law or that the non-conforming construction did not contribute to Bela Bako's injury, for the reasons explained above, the court denies defendants' motion for summary judgment dismissing the complaint. C.P.L.R. § 3212(b).