Opinion
23735/2015E
06-05-2018
Alex VELEZ, Plaintiff, v. SHERMAN ASSOCIATES, L.P., Defendant.
Counsel for Plaintiff: Trolman, Glaser, & Lichtman (Dennis Bellovin, Esq., New York) Counsel for Defendant: Jeffrey Kim, P.C. (Stephen E. Kwan, Esq.)
Counsel for Plaintiff: Trolman, Glaser, & Lichtman (Dennis Bellovin, Esq., New York)
Counsel for Defendant: Jeffrey Kim, P.C. (Stephen E. Kwan, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 5 read on the below motion noticed on August 23, 2017 and duly submitted on the Part IA15 Motion calendar of December 14, 2017:
Papers SubmittedNumbered
Def.'s Notice of Motion, Exhibits 1,2
Pl. Aff. In Opp., Exhibits 3,4
Def.'s Aff. in Reply 5
Upon the foregoing papers, the defendant Sherman Associates, L.P. ("Defendant") moves for summary judgment, dismissing the complaint of the plaintiff Alex Velez ("Plaintiff") pursuant to CPLR 3212. Plaintiff opposes the motion.
I. Background
This matter arises out of an alleged fall-down accident that occurred on an interior staircase located at Defendant's premises in the Bronx. At the time of the incident, Plaintiff was working for Fed Ex as a carrier and driver. He arrived at the premises on October 16, 2013 to deliver a Dell computer in a box that weighed approximately 30–35 pounds to a resident located on the building's third or fourth floor (Pl. EBT at 18). Plaintiff gained entry into the premises and walked up about 7–8 steps before he reached an intermediate landing (id. at 25). He then made a U-turn and began to ascend another set of stairs, which consisted of another 7–8 steps (id at 24–26). While holding the computer box in front of him with both hands, Plaintiff placed his right foot on the first step above the intermediate landing while positioned less than an arms-length away from a wall on the right-hand side that did not have a handrail attached to it (id. at 26–28). Plaintiff then placed his left foot on the second step, which he observed prior to stepping on it, and his left foot landed on the edge of the step with his left heel hanging off of it (id. at 30–31). Plaintiff testified that his left foot was on the second step for a "few seconds" before he lost his balance (id at 31), although he did not trip or slip on anything (id. ) After losing his balance, Plaintiff felt a crack in his left knee, and he fell backwards and to the right (id. at 32). Plaintiff's right knee then came into contact with the intermediate landing and he stuck out his right hand to brace his fall (id. at 33–35), and the computer box fell out of his hands (id. at 34). After he fell, Plaintiff viewed the second step and noted that it was "a little sloped down" and shorter than the first step (id. at 37; 40–42). Plaintiff then completed his delivery by walking up and down the stairs without incident (id. at 40; 42–43).
Defendant submits the deposition testimony of Leonard Schwartz, whose duties involved overseeing day-to-day operations at the subject property. Mr. Schwartz testified, in pertinent part, that the building had gone through certain renovations prior to this accident in accordance with certain New York City and Department of Buildings specifications(Schwartz EBT at 14). These renovations included the layout of certain apartment units, however he could not recall if there were ever any discussions regarding renovations of the stairs (id. at 20–21). He did testify that at the time of the renovations, the stairs were inspected by an architect and inspector from the City (id. at 32). Mr. Schwartz did not recall having conversations with the general contractor concerning the stair's riser heights, and he did not recall if there was any work performed concerning handrails (id. at 39). In addition, Mr. Schwartz did not recall any complaints or discussions regarding the steps or handrails at the building (id. at 39).
In support of its motion, Defendant supplies the above testimony, photographs of the subject staircase, and an affirmed report from Charles J. Schaffer, and architect who inspected the stairs on January 12, 2017. Mr. Schaffer contends that the building was approved by the Tenement House Department on January 10, 1923, and thus is subject to the 1901 House Law of the City of New York. Mr. Schaffer measured the width and length of the subject step, and stated that those measurements complied with Tenement House Law ("THL"). He also noted that while THL does not address the "slope" of steps, the subject step was "firmly in place, not cracked, and did not rock when walked upon." The expert thus concluded that the step conformed with THL and the applicable New York City Building Code (§ 28–301.1 of the 2008 Administrative Code of the City of New York), and that the condition of the steps did not cause Plaintiff's accident. In addition, the expert found that the handrail was in good repair and was firmly in place, in compliance with the THL. Thus, it was Mr. Schaffer's opinion that the subject stairs complied with applicable laws and the handrails were in good working condition.
Defendant argues that it is entitled to summary judgment because the above evidence demonstrates that the subject step was maintained in a reasonably safe condition and not defective. Defendant asserts that the expert report indicates that the stairs complied with applicable law and were not dangerous. Defendant also asserts that the photographs show no defects on the stairs. Further, Defendant contends that Plaintiff readily observed the step before stepping on it, and thus any expectation of varying riser height was negated. Moreover, the photographs of the stairs show the absence of any optical confusion that Plaintiff might claim. Defendants also submit a copy of a hand-written incident report that Plaintiff wrote after the accident. Nowhere in that report does Plaintiff attribute the subject step as the cause of his accident. Finally, Defendant asserts that the handrail was not defective, and furthermore, there is no evidence that the absence of a handrail contributed to his fall. Plaintiff was holding a computer box as he ascended the steps and there is no evidence that he attempted to reach for a handrail. Defendant thus argues that Plaintiff's claim that an improperly constructed hand rail contributed to his accident is without merit.
Plaintiff opposes the motion, asserting initially that Defendant's submissions fail to carry their initial summary judgment burden of proving that the stairs and handrail were reasonably safe. Plaintiff argues that even if Defendant met its burden, the sworn report from his expert William Marletta raises issues of fact as to whether the subject stairs complied with applicable Building Code and safe practice. Plaintiff also disputes Defendant's contention that Plaintiff's own testimony and the post-accident incident report that he drafted is fatal to this action.
In reply, Defendant asserts inter alia that any defect in the stairs observed by Plaintiff's expert was de minimus and not actionable. Defendant further asserts that Plaintiff's expert referred to inapplicable building codes, failed to take into account the relevant deposition testimony in rendering his opinions, and failed to make reference to outside material of the kind accepted in the profession as reliable in forming a professional opinion. Defendant further asserts that the deposition testimony from Mr. Schwartz carried its initial burden of proving lack of notice as a matter of law.
II. Standard of Review
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." ( Winegrad v. New York University Medical Center , 64 NY2d 851 [1985] ; Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395 [1957] ). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id. , see also Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Facts must be viewed in the light most favorable to the non-moving party ( Sosa v. 46th Street Development LLC. , 101 AD3d 490 [1st Dept. 2012] ). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility ( Vega v. Restani Constr. Corp. , 18 NY3d 499 [2012] ). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. ( Bush v. Saint Claire's Hospital , 82 NY2d 738 [1993] ).
III. Applicable Law and Analysis
To impose liability upon a landowner in a premises liability-related action, there must be evidence that a dangerous or defective condition existed and that the defendant either created or had actual or constructive notice of the condition ( Piacquadio v. Recine Realty Corp. , 84 NY2d 967 [1994] ). To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time before the accident to permit defendant's employees to discover and remedy it. (see Gordon v. American Museum of Natural History, 67 NY2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986]) . The notice required must be more than general notice of any defective condition. (Id. ) The law requires notice of the specific condition alleged at the specific location alleged (Id. ) Importantly, it is not the plaintiff's burden in opposing a motion for summary judgment to establish that defendants had actual or constructive notice of the hazardous condition. Rather, it is defendant's burden to establish lack of notice as a matter of law ( Giuffrida v. Metro N., Commuter R.R. Co. , 279 AD2d 403, 404 [1st Dept. 2001] ). Such a moving defendant must demonstrate the lack of evidence regarding how the alleged condition came into existence, how visible and apparent it was, and for how long a period of time prior to the accident it existed (Id. ).
In this case, Defendant failed to carry its initial burden of demonstrating that the stairs at issue were maintained in a reasonably safe condition and were not defective. Plaintiff consistently testified that he was caused to fall because the subject step was "a little sloped down" and shorter than the first step (Pl. EBT at 37; 40–42). Plaintiff's verified bill of particulars alleged, inter alia , that the first two risers were not uniform in height, and the slopes of the treads were not uniform and the slope of the second step had a forward pitch, in violation of various building codes and statutes. Defendant's expert did not measure the height of the step risers nor did he render any opinion as to whether the riser height complied with Tenement House Law or the applicable Building Code. Although he said that the step was "firmly in place" and it did not rock when walked upon, the expert did not take any actual measurements of the tread slope and did not comment as to whether a slope actually existed or not. Thus, while he stated that the 1901 THL did not "include any limitations for tread slope," he did not adequately support his conclusion that the step was maintained in a safe and good working condition. Without measuring the riser heights, the expert's opinion that the stairs complied with THL and/or the applicable Building Code, and did not contribute to the Plaintiff's accident, did not have a proper factual basis (see generally Murphy v. Conner , 84 NY2d 969, 972 [1994] ; see also Barley v. Robert J. Wilkins, Inc. , 122 AD3d 1116, 1117 [3rd Dept. 2014] ). Even assuming that Defendant is correct that any issue with the handrail was not a proximate cause of the accident, this would not entirely dispose of Plaintiff's case, as it is only one of the categories of defect and violations alleged by Plaintiff (see, e.g., Berr v. Grant , 149 AD3d 536, 537 [1st Dept. 2017] ).
Furthermore, contrary to Defendant's contentions, the fact that Plaintiff observed the step before placing his foot on it does not allow the inference that Plaintiff was readily able to discern and appreciate the varying riser height while ascending the stairs. Plaintiff testified that stepping on the end or edge of the second step caused him to lose his balance (Pl. EBT at 24; 28; 29). This testimony sufficiently identified the cause of his accident and established the causal link between the condition on the stairs and his fall (see, e.g., Johnson v. 675 Coster St. Houding Dev. Fund , 2018 NY Slip. Op. 03756 [1st Dept. May 24, 2018] ; see also Murray v. Villa Barone Ristorante, Inc. , 148 AD3d 458, 459 [1st Dept. 2017] ). The photographs annexed to the moving papers do not conclusively demonstrate the absence of a dangerous condition on the steps (see, Johnson v. 675 Coster St. Houding Dev. Fund , supra ). Defendant also failed to carry its burden of proving a lack of constructive notice of the allegedly defective condition, as it failed to present any specific affirmative evidence as to when the area was last inspected before the accident occurred (see Schwartz EBT at 38–39) (see, e.g., DiPini v. 381 E. 160 Equities, LLC., 121 AD3d 465 [1st Dept. 2014] ).
Finally, the fact that Plaintiff did not refer to a condition on the stairs in his hand-written incident report is not fatal to his claim. At best, this writing only goes to the issue of Plaintiff's credibility, which cannot be considered in the context of a summary judgment motion (see Vega v. Restani Const. Corp. , supra ). Because Defendant failed to carry its initial summary judgment burden, its motion is denied without consideration of Plaintiff's opposition papers (see Winegrad v. New York University Medical Center , 64 NY2d 851 ).
IV. Conclusion
Accordingly, it is hereby
ORDERED, that Defendant's motion for summary judgment is denied.