Opinion
12-15-2016
Ndeye NDIAYE, Plaintiff–Respondent–Appellant, v. NEP WEST 119th STREET L.P., et al., Defendants–Appellants–Respondents.
Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for appellants-respondents. John O'Gara, P.C., New York (John O'Gara of counsel), for respondent-appellant.
Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for appellants-respondents.
John O'Gara, P.C., New York (John O'Gara of counsel), for respondent-appellant.
SWEENY, J.P., RENWICK, RICHTER, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered April 5, 2016, which denied defendants' motion for summary judgment dismissing the complaint and plaintiff's cross motion for an order concluding as a matter of law that defendants' staircase violated the 1916 Building Code requiring an interior staircase to have two handrails, unanimously modified, on the law, defendants' motion granted, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Plaintiff alleges that she lost her balance while attempting to descend interior stairs in defendants' building with a heavy shopping cart, and that the absence of a second handrail on her right side proximately caused her to fall down the steps. She alleged that the stairs were maintained in violation of the 1916 Building Code of the City of New York, which required handrails on both sides of interior stairs.Defendants established their entitlement to judgment as a matter of law by submitting evidence that there was no defective condition on the stairs (see Egan v. Emerson Assoc., LLC, 127 A.D.3d 806, 6 N.Y.S.3d 600 [2d Dept.2015] ), and that the building was constructed before 1916 and complied with the requirements of the applicable Tenement House Law, which only required one handrail on staircases like the one at issue (see Rivera v. Bilynn Realty Corp., 85 A.D.3d 518, 925 N.Y.S.2d 452 [1st Dept.2011] ; see also Hotaling v. City of New York, 55 A.D.3d 396, 397, 866 N.Y.S.2d 117 [1st Dept.2008], affd. 12 N.Y.3d 862, 881 N.Y.S.2d 655, 909 N.E.2d 577 [2009] ).
In opposition, plaintiff submitted evidence that the building underwent alterations in 1931, and argued that as a result, the building was required to comply with the 1916 Code. However, even assuming the alterations would have required the owner to bring the building into compliance with current codes, the 1916 Building Code, by its terms, did not apply to buildings "coming under the provisions of the Tenement House Law" (Hunter v. G.W.H.W. Realty Co., Inc., 247 App.Div. 385, 386, 287 N.Y.S. 395 [1st Dept.1936] ; see Erlicht v. Boser, 259 App.Div. 269, 270, 18 N.Y.S.2d 797 [1st Dept.1940] ). The applicable building code in effect at the time of the renovations was New York Multiple Dwelling Law § 52, which superseded the Tenement House Law and also did not require two handrails (see Adler v. Deegan, 251 N.Y. 467, 470–471, 167 N.E. 705 [1929] ; Erlicht v. Boser, 259 App.Div. at 270, 18 N.Y.S.2d 797 ). Plaintiff's submission of the certificate of occupancy issued after the 1931 alterations supports defendants' position that the stairs complied with all applicable regulations (see
Hyman v. Queens County Bancorp, 307 A.D.2d 984, 986, 763 N.Y.S.2d 669 [2d Dept.2003], affd. 3 N.Y.3d 743, 787 N.Y.S.2d 215, 820 N.E.2d 859 [2004] ).