Opinion
4903/07.
Decided February 9, 2010.
Plaintiff was represented by Dino J. Domina, Esq. Defendant Mezeny Inc. d/b/a Meze was represented by Eric B. Lutwin, Esq. of Lester Schwab Katz Dwyer, LLP. Defendant Prime Holdings, LLC was represented by John J. Palmeri, Esq. of Palmeri Gaven, Esqs.
There is no dispute, at least for purposes of these motions, that on April 28, 2006 plaintiff Nancy Grazidei fell in front of a restaurant operated by defendant Mezeny Inc. d/b/a Meze at 6601 13th Avenue, Brooklyn, property owned by defendant Prime Holdings, LLC. Each Defendant moves for an order, pursuant to CPLR 3212, dismissing Plaintiff's Verified Complaint. Each Defendant also moves against the other for summary determination of a cross-claim that Prime Holdings has asserted against Mezeny. Plaintiff moves for an order, pursuant to CPLR 3025 (b), granting her leave to amend her Verified Bill of Particulars.
The Verified Complaint dated February 7, 2007 is sparse on details, and, in effect, alleges only that Defendants were negligent "in causing and/or permitting an unsafe, dangerous and hazardous condition to exist" at the premises, and "in failing to give notice to the plaintiff of the unsafe, dangerous and hazardous condition existing" at the premises. (Verified Complaint, ¶ 14.) A Verified Bill of Particulars dated September 24, 2007 adds nothing in specificity as to the condition that allegedly caused Plaintiff to fall.
Plaintiff was deposed on February 21, 2008, and described her exit from the restaurant and her encounter with the single step that leads from the doors to the sidewalk.
"Q. As you exited the premises do you recall putting a foot on the step?
A. I didn't even see the step. So I am going to say I put my right foot down first because my left foot buckled under me.
. . .
Q. Did you put the right foot on the step?
A. Again, I didn't realize there was a step, but my first step was my right foot.
. . .
Q. Do you know if there was something that caused your left foot to buckle?
A. No.
Q. How did it buckle? Did it roll in or out or something else?
A. I felt my left foot go under me.
Q. Could you be more specific, if possible?
A. It's like walking out straight and not knowing and you are just going to proceed to walk out straight, and something is preventing me from walking out straight, which I was not aware of. If you are walking out straight you are thinking you are going to be on a flat level, and I wasn't.
Q. Was the step unlevel, the sidewalk, or something else?
A. It looked like I was going straight. I didn't see any difference.
. . .
Q. After you fell, did you ever observe anything structurally with respect to the step?
A. At the point when I fell, I remained there for a minute or two. I couldn't move.
Q. Did you observe anything during that minute or two?
A. No. I was facedown.
Q. After, did you observe it?
A. Yes. I turned around, and I said, What did I fall on? I still didn't know what I fell on. Then I said I fell on the step.
Q. Do you know if there was anything about the step which caused you to fall?
A. No.
Q. Did you ever come to learn anything about the step that may have caused you to fall?
A. Thereafter.
Q. What did you learn thereafter?
A. That there was a little bit of a slope on the left-hand side.
Q. At what point did you observe this slope?
A. I never went myself. I saw a picture." (Examination Before Trial of Nancy Grazidei at 22-24, 27-28.)
Plaintiff was shown photographs of the step in front of the restaurant doors and questioned about the "slope on the step."
"Q. Was there a slope on the step, or was there a slope on the sidewalk?
A. There was a slope on the step.
Q. How was the step sloped?
A. Coming in from left to right, I would say significantly. In incheswise, is that what you mean?
Q. In any — A. Visual.
Q. In any way that you can describe the slope.
A. Not balanced.
Q. Other than this slope, was there anything else about the step?
A. No.
Q. Did your left foot get caught on anything which caused you to fall?
A. No.
Q. Did your left foot slip on anything causing you to fall?
A. No.
Q. Did your right foot get caught on anything causing you to fall?
A. No.
Q. Did your right foot slip on anything causing you to fall?
A. No.
. . .
Q. If I can show you Defendant's B, do you know where your left foot was when it buckled?
A. I am going to say right here. I am pointing to the end of the slope.
Q. Is that the edge of the slope?
A. The edge of the slope.
. . .
Q. Ms. Grazidei, by looking at Defendants' B, can you indicate where your right foot was prior to the time you fell?
. . .
MR. SHAW: Just for the record: The witness is indicating that she put her foot down. If you are looking from the top of the photograph by the steps, the right foot was put downsort of to the left of the P that is on the step; is that correct?
THE WITNESS: Correct.
MR. SHAW: Then her left foot by the edge of the step infront of that.
THE WITNESS: That is correct." ( Id. at 29-31, 33.)
The photographs about which Plaintiff was questioned, and which would have assisted the Court in better understanding the testimony, are not included in Mezeny's motion papers. Photos are included in the papers on Prime Holdings's motion against Mezeny, but they are not stated to be the photos used at Plaintiff's deposition.
More than a year later, Plaintiff served a Supplemental Verified Bill of Particulars dated May 14, 2009, alleging that Defendants violated specified provisions of the 1916, 1938, and 1968 Building Codes. Plaintiff also served an Expert Witness Disclosure Notice Pursuant to CPLR § 3101 (d), also dated May 14, 2009, which identifies the Building Code provisions specified in the Supplemental Verified Bill of Particulars as relating to exterior and interior stairways, including handrails. According to the disclosure, Plaintiff's expert, Scott Silberman, P.E., is expected to testify, among other things, that "the building codes do not permit single step stairways in New York City"; that "single step stairways do not provide a safe means of ingress and egress and are dangerous"; that "if a single step stairway exists or cannot be avoided good custom and practice demands highlighting the step's nosing"; and that "the subject single step stairway need handrails."
Plaintiff's note of issue followed fast on the heels of the Supplemental Verified Bill of Particulars and 3101 (d) disclosure. Neither at the time the documents were served, nor on these motions, has either Defendant objected on any ground to service of either document. Plaintiff's now-pending request for leave to amend her bill of particulars, to which Defendants do object, will be addressed in due course.
As summarized by Mezeny, Defendants contend that they are entitled to summary dismissal of Plaintiff's Verified Complaint "because the evidence demonstrates that [Plaintiff] did not know what caused her to fall and to the extent she now claims that she fell on the single step, a single step is not [an] inherently dangerous condition." (Affirmation, ¶ 8.) Defendants contend, in effect, that Plaintiff cannot establish the existence of an unreasonably dangerous condition on the premises, or that any such condition caused her to fall. Although questions as to breach of duty conceptually precede questions as to causation, where the plaintiff cannot identify the cause of a fall, the questions are conflated and addressed in the caselaw under the rubric of proximate cause. Here, by their contention on this motion that a single step is not an unreasonably dangerous condition, after service and acceptance of the Supplemental Verified Bill of Particulars and expert disclosure, Defendants recognize that Plaintiff has identified the single step as a cause of her fall. Their complaint becomes, in the first instance, therefore, that disclosure did not reveal any evidence that would relate the single step to Plaintiff's fall.
"In a trip and fall case, [a] plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation." ( Antonia v Srour, 2010 NY Slip Op 213, * 1 [2d Dept Jan 12, 2010] [internal quotation marks and citations omitted]; see also Cherry v Daytop Vil., Inc. , 41 AD3d 130, 131 [1st Dept 2007]; Jackson v Fenton , 38 AD3d 495 , 495 [2d Dept 2007].) The defendant in a trip and fall case establishes its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, demonstrating that the plaintiff cannot identify the cause of the fall. ( See Scott v Rochdale Vil., Inc., 65 AD3d 621, 621 [2d Dept 2009]; Hunt v Meyers , 63 AD3d 685 , 685 [2d Dept 2009]; Plowden v Stevens Partners, LLC , 45 AD3d 659 , 660 [2d Dept 2007]; Lee v J R Electronic, Inc., 38 AD3d 501, 501 [2d Dept 2007].)
"Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident." ( Constantino v Webel, 57 AD3d 472, 472 [2d Dept 2008]; see also Cintron v New York City Tr. Auth. , 61 AD3d 803 , 804 [2d Dept 2009]; Manning v 6638 18th Ave. Realty Corp. , 28 AD3d 434 , 435 [2d Dept 2006].) But there must be "a sufficient nexus between the condition of the [property] and the circumstances of [the plaintiff's] fall to establish causation" ( see Cherry v Daytop Vil., Inc., 41 AD3d at 131), that is, "a reasonable inference of causation" and not "mere speculation" ( see Constantino v Webel, 57 AD3d at 472-473; see also Lissauer v Shaarel Halacha, Inc. , 37 AD3d 427 , 427-28 [2d Dept 2007] ["sheer speculation"]; Grob v Kings Realty Assocs., LLC, 4 AD3d 394, 395 [2d Dept 2004] ["purely speculative"].)
The "unknown cause" caselaw is most appropriately applicable where a foreign object or substance on the floor or stairs is alleged to have created the danger, or some defect in construction, such as a hole or broken step. It must be applied realistically where there is an alleged flaw in structural design, since a plaintiff cannot be expected to testify with an engineer's eye to the presence of the flaw and its likely effect in bringing about a fall.
With this in mind, the Court finds that Plaintiff's deposition testimony is insufficient to satisfy Defendants' prima facie burden based upon the "unknown cause" caselaw. As quoted above, Plaintiff testified that she "fell on the step," and, although she did not know "if there was anything about the step which caused [her] to fall," she described what happened. "I felt my left foot go under me . . . It's like walking out straight and not knowing . . . If you are walking out straight you are thinking you are going to be on a flat level, and I wasn't . . . It looked like I was going straight. I didn't see any difference."
Plaintiff's description of her fall is, at the least, consistent with a height differential, such as is presented by the single-step riser addressed in the expert disclosure. Moreover, although the "slope on the step" does not appear to be addressed in the expert disclosure, Plaintiff's testimony about it clearly points to the step itself as the cause of her fall.
Assuming, however, that Defendants have made a prima facie showing under the "unknown cause" caselaw, then the affidavits of Plaintiff and her expert engineer, submitted in opposition, are sufficient to raise triable issues as to whether the absence of handrails "constituted a violation of the subject building code ordinances, and whether the lack of handrails was a proximate cause of the accident." ( See Spallina v St. Camillus Church , 53 AD3d 650, 651 [2d Dept 2008].) Plaintiff asserts that "[w]hen [her] right foot buckled, [she] reached to [her] right for something to stop [her] from falling but there was nothing to hold onto and [she] fell to the ground." (Affidavit of Nancy Grazdei, ¶ 4.) "Even if the plaintiff's fall was precipitated by a misstep, given her testimony that she reached out to try to stop her fall, there is an issue of fact as to whether the absence of a handrail was a proximate cause of her injury." ( See Antonia v Srour, 2010 NY Slip Op 213, at * 1; see also Christian v Railroad Deli Grocery , 57 AD3d 599, 601 [2d Dept 2008]; Scala v Scala , 31 AD3d 423 , 425 [2d Dept 2006].) The expert's affidavit tracks the 3101 (d) disclosure, and specifically addresses the absence of a handrail at the subject premises.
Defendants contend that the Court should not consider Plaintiff's affidavit as it relates to the absence of a handrail to find a triable issue, because she did not testify at her deposition that the absence of a handrail contributed to her fall. They contend that Plaintiff's affidavit "present[s] feigned issues of fact designed to avoid the consequences of [her] earlier deposition testimony, and thus [is] insufficient to defeat the defendants' motion." ( See Hunt v Meyers, 63 AD3d at 685-86]; see also Wilson v Prazza, 306 AD2d 466, 467 [2d Dept 2003].) There is nothing in Plaintiff's affidavit that contradicts her deposition testimony, and the most that could be argued is that she would have been expected to mention the absence of a handrail as contributing to her fall. But the Court disagrees that the relevant questions asked, most of which are quoted above, would have elicited such a response. Moreover, it is debatable whether a layperson would immediately think of the lack of a handrail as the cause of a fall.
Defendants may yet succeed in at least removing the single-step issue from the case, if they are correct that "a single step is not an inherently dangerous condition." (Affirmation, ¶ 8.) But Defendants clearly overstate the significance of the caselaw on the issue. A defendant may establish its entitlement to judgment as a matter of law with evidence that a single step is both "open and obvious and not inherently dangerous." ( See Bretts v Lincoln Plaza Assoc., Inc., 2009 NY Slip Op 8771, * 1-* 2 [2d Dept Nov 24, 2009]; Groon v Herricks Union Free School District , 42 AD3d 431 , 432 [2d Dept 2007]; Luciano v 144-18 Rockaway Realty Corp. , 32 AD3d 505 , 506 [2d Dept 2006].) Where a sufficient showing is not made, however, the defendant will be denied summary judgment. ( See Kempter v Horton , 33 AD3d 868 , 869 [2d Dept 2006].) The caselaw on single steps or other height differentials is consistent with premises liability authority generally that, in the absence of a warning, the defendant seeking summary dismissal must demonstrate "as a matter of law, that the condition was both open and obvious and not unreasonably dangerous." ( See Holly v 7-Eleven, Inc. , 40 AD3d 1033, 1033 [2d Dept 2007] [emphasis added]; see also Selig v Burger King Corp. , 66 AD3d 986 , 986 [2d Dept 2009].)
And so, in a case involving an interior single-step riser, the defendant made a sufficient showing with evidence that "[t]here was a gold-color nosing on the step and the pattern of the tiles on the top of the steps was different from the pattern of the tiles below the steps"; and "[t]here was also a sign stating "Watch Your Step" adjacent to the step." ( See Bretts v Lincoln Plaza Assocs., Inc., 2009 NY Slip Op 8771, at * 1-* 2.) And where there was a single step in a hallway, the defendant made a sufficient showing with photographs revealing that "a yellow line had been painted across the top of the step to alert passersby of the height differential and that, also present, to the side, was a short ramp, allowing passersby to circumvent the step altogether." ( See Groon v Herricks Union Free School District, 42 AD3d at 432.)
Here, Defendants make no showing that the single step in front of the doors to the restaurant is either open and obvious or not inherently dangerous. Although defendant Prime Holdings does include photographs in its motion papers, they are not authenticated or otherwise shown to be admissible as evidence ( see Corsi v Town of Bedford , 58 AD3d 225 , 228-29 [2d Dept 2008]), and they are not supported by any opinion, lay or expert, admissible or not, on the controlling issues.
Defendants cannot, therefore, obtain summary dismissal under either the "unknown cause" or single-step caselaw.
Defendant Prime Holdings moves additionally for dismissal of the Verified Complaint on the ground that "[i]t was an owner out of possession and was not responsible for the upkeep of the exterior step that patrons utilized is [ sic] exiting co-defendant's restaurant." (Affirmation, ¶ 6; see also Putnam v Stout, 38 NY2d 607.) And Prime Holdings moves separately for "summary judgment granting it full indemnity against the co-defendant." Id., ¶ 14.) As to both motions, Prime Holding relies primarily on the lease between Defendants, and for that reason both motions fail.
Each Defendant submits in its motion papers a document that, its counsel asserts, is a copy of a lease between Mezeny and Prime Holdings, but neither Defendant authenticates its version of the lease or otherwise renders it admissible as evidence. ( See Prince, Richardson on Evidence § 9-101 et seq. [Farrell 11th Ed]; NYCTL 1998-2 Trust v Santiago , 30 AD3d 572 , 573 [2d Dept 2006].) "Its version," because, according to counsel for Prime Holdings, the copy submitted by Mezeny is "not complete" (Affirmation, ¶ 10.) But the copy submitted by Prime Holdings also appears, on its face, to be incomplete, in that the printed part ends in the midst of a provision numbered 35 and is missing a signature page. Also, the copies submitted by both Mezeny and Prime Holdings are in significant part illegible, and raise questions that are not addressed. For example, the only signatures appear at the end of a document headed "Rider to Lease Between Prime Holdings LLC and Ying Qiang Tan." Mezeny makes no showing that the cross-claim asserted against it by Prime Holdings must be dismissed.
Finally, Plaintiff moves to amend her bill of particulars to add allegations as to inadequate lighting. "Motions for leave to amend pleadings should be fully granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit." ( Tyson v Town Ins. Co., NY, 2009 NY Slip Op 9461, * 2 [2d Dept Dec 15, 2009]; see also CPLR 3025 [b].) "Mere lateness, unless coupled with prejudice, does not bar an amendment." ( Matter of Rouson , 32 AD3d 956 , 958 [2d Dept 2006].) "Where no prejudice is shown, an amendment may be allowed during or even after trial'." ( Dinizio Cook, Inc. v Duck Creek Marina at Three Mile Harbor, Ltd. , 32 AD3d 989 , 990 [2d Dept 2006] [ quoting Dittmar Explosives v A.E. Ottaviano, Inc., 20 NY2d 498, 501 (1967)]; see also CPLR 3025 [c].)
"The defendants cannot legitimately claim surprise or prejudice, when the proposed amendments [are] premised upon the same facts, transactions or occurrences alleged in the original [pleading]." ( See Janssen v Incorporated Vil. of Rockville Ctr. , 59 AD3d 15 , 27 [2d Dept 2008].) "Prejudice requires that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position'." ( RCLA, LLC v 50-09 Realty, LLC , 48 AD3d 538 , 539 [2d Dept 2008] [ quoting Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 (1981)].)
To say that a proposed amendment is "palpably insufficient or patently devoid of merit" ( see Tyson Tower Ins. Co., NY, 2009 NY Slip Op 9461, at * 2) "means that, in the case, for example, of a motion for leave to amend a complaint by adding a new cause of action, . . . the new cause of action would not withstand a motion to dismiss under CPLR 3211 (a) (7)." ( See Lucido v Mancuso , 49 AD3d 220 , 225 [2d Dept 2008].)
Other than well-justified complaint about the lateness of Plaintiff's amendment, Defendants fail to demonstrate prejudice or surprise. Unlike the matter of handrails, Plaintiff was questioned at her deposition about the lighting, and she stated that, in her opinion, the lighting was "insufficient." (Examination Before Trial of Nancy Grazidei at 24-25.) Moreover, the adequacy of lighting is necessarily implicated in any inquiry as to whether a single step is open and obvious and not inherently dangerous. ( See Kempter v Horton, 33 AD3d at 869; Murray v Dockside 500 Marina, Inc. , 32 AD3d 832 , 833 [2d Dept 2006]; see also Shalameyeva v Park 83rd St. Corp. , 32 AD3d 387 , 387-88 [2d Dept 2006]; Miner v Northport Yacht Club , 15 AD3d 362 , 363 [2d Dept 2005].)
Defendant Mezeny's contention that Plaintiff's delay in seeking leave to amend "deprives [Defendants] of the ability to take measurements of the lighting, to secure an expert with respect to lighting, include any expert affidavit in defendants' motions" (Affirmation in Opposition to Cross-Motion to Amend, ¶ 13) rings rather hollow given that neither Defendant has submitted on these motions an expert affidavit, or even cited deposition testimony of any defendant witness, to challenge the merits of any of Plaintiff's claims. Defendant Prime Holdings's contention that Plaintiff's deposition testimony is insufficient to establish that inadequate lighting was a proximate cause of her fall does not render the proposed amendment "palpably insufficient or patently devoid of merit" ( see Tyson v Tower Ins. Co., NY, 2009 NY Slip Op 9461, at * 2), particularly given the relationship between lighting and the dangerous of a single-step design.
Defendants' respective motions are denied.
Plaintiff's motion is granted; the Amended Verified Bill of Particulars attached as Exhibit A to the Affirmation in Support is deemed served.