Opinion
10411 Index 162585/15
11-21-2019
Esther Consuelo PORTO, Plaintiff–Appellant, v. GOLDEN SEAHORSE LLC, et al., Defendants–Respondents.
Greenberg Law P.C., New York (Jennifer A. Shafer of counsel), for appellant. RAS Associates, PLLC, Purchase (Paul E. Carney of counsel), for Golden Seahorse LLC, respondent. Litchfield Cavo LLP, New York (Patricia A. Carbone of counsel), for Amazon Restaurant and Bar, respondent.
Greenberg Law P.C., New York (Jennifer A. Shafer of counsel), for appellant.
RAS Associates, PLLC, Purchase (Paul E. Carney of counsel), for Golden Seahorse LLC, respondent.
Litchfield Cavo LLP, New York (Patricia A. Carbone of counsel), for Amazon Restaurant and Bar, respondent.
Richter, J.P., Manzanet–Daniels, Gische, Webber, Kern, JJ.
Order, Supreme Court, New York County, (Kathryn E. Freed, J.), entered January 4, 2019, which, to the extent appealed from as limited by the briefs, granted defendants Golden Seahorse LLC's (Golden) and Amazon Restaurant & Bar, Inc.'s (Amazon) respective motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Golden and Amazon established entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she fell down a stairway on the premises owned by Golden and operated by Amazon. Golden and Amazon submitted an expert engineer report that the stairway, which was part of a premises renovation in 1987, was properly maintained in a safe condition and violated no enforceable New York City Building Code requirements. In particular, the report concludes that under the applicable 1968 Building Code, the access stairway did not require handrails (see Cusumano v. City of New York, 15 N.Y.3d 319, 910 N.Y.S.2d 410, 937 N.E.2d 74 [2010] ) and the measured lighting was adequate and that no structural modification was required after the original certificate of occupancy was issued. In addition Golden and Amazon submitted a surveillance video which showed that plaintiff's head was turned away from the stairway just prior to her fall, and established that her inattentiveness was a proximate cause of her fall (see Pinkham v. West Elm, 142 A.D.3d 477, 477, 36 N.Y.S.3d 657 [1st Dept. 2016] lv denied 28 N.Y.3d 909, 2016 WL 6840125 [2016] ; Baker v. Roman Catholic Church of the Holy See, 136 A.D.3d 596, 597, 26 N.Y.S.3d 48 [1st Dept. 2016] ).
In opposition, plaintiff failed to raise an issue of fact. Plaintiff's expert's opinion was insufficient to raise any issue that the stairway was dangerous or defective. He acknowledges that the 1987 certificate of occupancy was issued when the premises were renovated. Nonetheless, the expert relies on inapplicable 2008 Building Code sections violations. No legal or factual basis exists in the record to retroactively apply the 2008 Building Code to this stairway. The expert did not measure the lighting, he only made an "estimate" based on personal observation. Although the 1968 Building Code requirement for handrails is referenced, it is well established that the cited requirement only applies to internal stairs that serve as a required exit, but not to the access stairs which were involved in this accident ( Cusumano, supra; Pwangsunthie v. Marco Realty, 136 A.D.3d 502, 26 N.Y.S.3d 9 [1st Dept. 2016] ).
We have considered plaintiff's remaining contentions and find them unavailing.