Opinion
No. 6278/2013.
03-19-2014
Lino CANO–CEBALLOS and David Ceballos, Plaintiffs, v. Yolan WADE, Defendant.
Opinion
The following papers numbered 1 to 15 were read on this motion by defendant, YOLAN WADE, for an order granting summary judgment in favor of said defendant and dismissing the plaintiffs' complaint:
| Papers Numbered | |
|---|---|
| Notice of Motion–Affirmation–Exhibits | 1–6 |
| Plaintiff's Affirmation in Opposition | 7–11 |
| Reply Affirmation | 12–15 |
Plaintiff, Lina Cano–Ceballos, commenced an action on February 9, 2013, to recover damages for personal injuries she allegedly sustained on July 18, 2012, when she tripped and fell on a cement lip located at the base of an interior stairway at the single family residence owned by plaintiff's grandmother, defendant Yolan Wade, located at 140–21 58th Road, Flushing, New York. In her bill of particulars, the plaintiff alleges that she fell due to the negligence of the defendant in allowing a staircase at the location to become and remain in a hazardous condition; in allowing the staircase to become and remain for a period of time after notice either actual or constructive, in a raised, broken, defective, irregular, un-level and dangerous condition; and in failing to provide adequate lighting. As a result of the accident the plaintiff, age 29, sustained a comminuted trimalleolar fracture of the left ankle requiring an open reduction with internal fixation.
The plaintiffs commenced this action by filing a summons and complaint on February 9, 2013. Issue was joined by service of the defendant's verified answer dated May 1, 2013. The plaintiff filed a Note of Issue on June 27, 2014. The matter is presently on the calendar in the Trial Scheduling Part for April 20,2015.
Defendant now moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the plaintiff's complaint on the ground that the plaintiff has failed to establish that the defendant either created the dangerous condition or had actual or constructive notice of the condition and failed to remedy it within a reasonable time.
In support of the motion, the defendant submits a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; copies of the transcripts of the examination before trial of the plaintiff and the defendant, photographs of the staircase in question and Department of Buildings specifications of the property.
In her examination before trial, taken on March 20, 2014, Lina Cano–Ceballos, testified that on the date of the accident, July 18, 2012, she was visiting her grandmother, defendant Yolan Wade, at her grandmother's home located at 140–21 58th Road Flushing, New York. She states that she lived with her grandmother at the subject premises from June 2008 until January 2009 while her grandmother was recovering from an accident. On the date of the plaintiff's accident she had gone to her grandmother's house because she had large plastic storage boxes she wanted her grandmother to store for her in the basement. The outside access to the basement is through heavy metal Bilco doors and a staircase leading to the basement from the back of the house.
Plaintiff testified that she carried one box down the steps. She stated that on this first trip down she had no difficulty descending the steps and no problem with the lighting. She testified that there is a light above the door where the basement space connects to a laundry area. She then stayed downstairs while her husband carried additional boxes down. When they completed loading in the boxes, her husband closed the Bilco doors from the outside. She was standing on the fourth step waiting for him to close the doors because they needed to be locked from the inside. She was waiting on the steps to latch the doors from the inside. After she locked the doors she proceeded down the steps. When she reached the bottom of the staircase she thought she was putting her foot down on the floor but there was a little step or cement ledge, approximately two inches in height, at the bottom of the stairs which caused her to put half of her foot on the little step and half on the floor causing her to twist her ankle. She expected her foot to hit the floor but the ledge was not apparent to her. The “little step” was at the base of the staircase. A review of the photographs shows a ledge or cement strip on the floor abutting the first step. She stated that once the doors were closed there was less light but the inside light was still on. When she twisted her ankle on the ledge she fell on her knees as there were no railings to hold on to. She stated that her grandmother never warned her as to the small ledge at the bottom. She stated that although she had seen the stairs before when she was visiting at her grandmother's house, she never noticed anything unusual about the steps. She left the scene in an ambulance which transported her to New York Hospital Medical Center of Queens. She was admitted for three days and had surgery with screws and plates. Her grandmother assisted her at home during her recuperation.
Yolan Wade, age 74, testified at an examination before trial on March 20, 2014. She testified that from 1975 until 2003 she lived in the subject house with her mother and then she purchased it from her brother and sister in 2003 when her mother passed away. She stated that construction of the house is based on a certificate of occupancy from 1931. She stated that the staircase in question was constructed at the time the house was built. There were never any railings on the steps. She did replace the outside cellar doors after she purchased the property. She stated that the basement steps were heavily used over time by repair men and delivery men as well as people doing laundry and hanging it outside. She herself has not used the steps in over seven years because of a physical disability involving her foot.
She stated that no one has ever injured themselves previously traversing the staircase. She stated that on the date of the accident she heard Lina yelling to come down and saw Lina laying on the ground. She asked Lina what happened and Lina said, “I missed the last three steps.” She testified that the light in the basement is sufficient to illuminate the staircase. When shown a photograph of what was characterized as a “liitle step” at the bottom, she stated that to her it was never a step. She stated that it is just a little extra cement, not an obstruction, and not a step that anyone would step on. She stated that there is no way that anyone would step off the last step and step on the piece of cement because it is up against the step and only 2 inches in height. She stated that it has been there from the time the house was built.
Counsel for defendant, Jonathan Hirschhorn, Esq. contends that the plaintiff's complaint should be dismissed because the defendant did not create the condition which caused the accident, nor is there evidence that the defendant had actual or constructive notice of the condition. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. The defendant does not allege that a hazardous condition did not exist at the premises or that the condition did not cause the plaintiff's accident, only that defendant did not have notice of the defect.
In opposition, Elizabeth J. Streelman, Esq., counsel for the plaintiff, asserts that the plaintiff tripped on a “false step” or raised slab of concrete at the bottom of the staircase that could not be viewed or observed by the plaintiff as she descended the staircase causing her to twist her ankle. Counsel submits photographs which depict the subject staircase. Counsel contends that the photographs show that the false step is clearly visible when standing on the floor of the basement but it cannot be observed as one descends the stairs from the backyard into the basement creating the illusion of walking on a flat walking surface.
In support of the opposition, the plaintiffs submit affidavits from Lina Cano–Ceballos and David Ceballos, dated October 9, 2014 and also submit an affidavit from professional engineer, Nicholas Bellizzi.
Lina Cano-ceballos states that she fell as a result of a raised slab of concrete resembling a “half-step” at the bottom of the interior staircase leading from the defendant's backyard into the basement. She states that upon locking the Bilco doors from the inside she proceeded down the staircase. The accident occurred when she reached what she thought was the bottom of the of the staircase and her left foot landed on the “half step/raised slab” of concrete that was located after what she believed was the last step on the staircase. Her left foot landed half on the basement floor and half on the half step causing her ankle to buckle and break. She states that as she descended the staircase she could not see the half step and she believed she had reached the basement floor when she stepped down and felt her ankle twist. She states that after the doors were closed from the outside the staircase was poorly illuminated with only one light bulb overhead to provide lighting. Additionally she states that there were no handrails on either side of the staircase to hold on to. She states that she did not observe the half step until she was lying on the basement floor immediately after her accident as it was clearly visible when she was situated in the basement looking up at the steps. She states that although she had lived in the home for several months in 2008 she never previously traversed the steps where the accident occurred. Nor did she ever before store boxes or other belongings in the basement area.
Plaintiff, David Ceballos, states that in addition to the false step, which could not be seen as one descended the stairs, there was very little lighting on the staircase and no handrails available to hold on to. He states that on the date of the accident he and his wife were using that staircase for the first time.
The plaintiff also submits an affidavit from Nicholas Bellizzi, P .E. a licensed professional engineer retained by the plaintiffs to examine the subject interior staircase. He states that based upon his examination on March 28, 2013, he found that the staircase had no handrails and was dimly lit. He states that at the bottom of the staircase there was an irregularly shaped concrete ledge/atypical stairway segment approximately 1½ inches in depth and one inch in height that protruded from the base of the staircase and did not constitute a full typical step. He states the step could not be viewed while descending the staircase but was visible when standing in the basement/laundry area. He states that the Certificate of Occupancy for the premises was first issued in 1931 at which time the 1916 Building Code was in effect. He states that in his opinion the subject staircase constituted a violation of the applicable building code which mandates that treads and risers of the staircase shall be of uniform width and height in any one flight. He states that the bottom protruding ledge, that allegedly caused the plaintiff's accident, was a non-conforming stairway element and did not conform to the tread or riser dimension requirements. He also states that the staircase violated the building code in that it failed to have walls or handrails on both sides. He states that the staircase was not maintained in a safe condition and the irregularly shaped concrete ledge did not comply with good and accepted safe industry practices. He states that the ledge represented a long standing hazardous condition that could not be viewed or observed when one descends the staircase.
Plaintiff contends that the defendant's testimony in which she stated that the ledge was there from the time the house was constructed, confirms that she had notice of the hazardous condition. Plaintiff claims that the defendant did not deny that the stairs were uneven and that the ledge existed for as long as she could remember. In addition, plaintiff concludes that summary judgment is not warranted because the expert engineer, Mr. Bellizzi, stated that the ledge was a long standing defective condition that was in violation of the applicable building codes and did not comply with good and commonly accepted safe industry practice. Thus, plaintiff argues that the defendant's evidence fails to show that the defendant did not have both actual and constructive notice of the long standing dangerous condition. Plaintiff asserts the affidavits of the plaintiffs and the affidavit of the expert raise questions of fact as to whether the step constitutes a dangerous condition in that it was not visible from the top of the staircase and as it was in violation of applicable building codes. Plaintiff claims that as the defendant conceded that she was aware of the ledge at the bottom of the step, she was negligent for failing to correct the dangerous condition. Further plaintiff asserts that the hazardous condition was the sole proximate cause of the plaintiff's accident
In reply, defendant's counsel submits a copy of the 1916 Building Code. He states that the sections of the building code which the plaintiff's expert stated were violated are not applicable. He states that a full reading of the code states that the relevant sections are inapplicable to residential properties and the strip of cement at the bottom of the stairs is not subject to the 1916 building code. Defendant also argues for the first time in his reply papers that the ledge in question is a trivial defect.
Upon review and consideration of the defendant's motion, the plaintiffs' affirmation in opposition and the defendant's reply thereto this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 N.Y.2d 557[1980] ).
A landowner has a duty to maintain his or her property in a reasonably safe manner to prevent foreseeable injuries. To demonstrate prima facie entitlement to judgment as a matter of law in a trip-and-fall case, a defendant must establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it (see Rendon v. Broadway Plaza Assoc. Ltd. Partnership, 109 AD3d 975 [2d Dept.2013] ; Villano v. Strathmore Terrace Homeowners Assn ., Inc., 76 AD3d 1061 [2d Dept.2010] ). A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ; Rendon v. Broadway Plaza Assoc. Ltd. Partnership, supra). Here, the defendant failed to establish, prima facie, that it lacked actual or constructive notice of the alleged defective condition (see Totten v. Cumberland Farms, Inc., 57 AD3d 653 [2d Dept.2008] ; Birnbaum v. New York Racing Assn., Inc., 57 AD3d 598 [2d Dept.2008] ). It is clear from the defendant's testimony that the half step or ledge or cement lip at the bottom of the stairs was part of the staircase since the house was built and the defendant stated that she was aware of the condition.
Whether a dangerous or defective condition exists on property so as to create liability depends on the particular circumstances of each case and is generally a question of fact for the jury (see Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997] ; Nagin v. K.E.M. Enters., Inc., 111 AD3d 901 [2d Dept.2013] ; Acevedo v. New York City Tr. Auth., 97 AD3d 515 [2d Dept.2012] ). Although the defendant's counsel raises the issue of the ledge being a trivial defect, he raised that issue for the first time in his reply papers such that the plaintiff did not have the opportunity to respond to that argument. As stated above, the defendant only argued in its motion papers that the defendant did not have actual or constructive notice of the allegedly hazardous condition.
With respect to whether the ledge constitutes a dangerous or defective condition, the finder of fact must examine the width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury (see Abalo v. Santorelli, 115 AD3d 777 [2d Dept.2014] ). This court finds that the affidavits submitted by the plaintiffs, including her affidavit, the photographs of the ledge, and the affidavit of the plaintiffs' expert, raise questions of fact as to whether the ledge constitutes a trap, nuisance or unsafe condition, whether the step presents an unreasonable or foreseeable risk of harm, and whether defendant was negligent in failing to provide any warning.
In addition, based upon the testimony of the plaintiff there is a question of fact as to whether the staircase was dangerous because the condition creates the illusion of a flat surface visually obscuring the step (see Langer v. 116 Lexington Ave., Inc., 92 AD3d 597 [1st Dept.2012] ; Brooks v. Bergdorf–Goodman Co., [1st Dept.1958] ). Where there is inadequate warning of a drop, poor lighting, inadequate demarcation between raised and lowered areas or some other distraction, the court may find that the condition is dangerous (citing Schreiber v. Philip & Morris Restaurant Corp., 25 A.D.2d 262 [1st Dept.1966] ). Here, there is a question of fact as to whether the ledge created an illusion of a flat or level surface which obscured the ledge when plaintiff was descending the staircase and whether the ledge may be less discernable when walking down (see Saretsky v. 85 Kenmare Realty Corp., 85 AD3d 89 [1st Dept.2011] ).
Accordingly, for the reasons set forth above, it is hereby,
ORDERED, that the defendant's motion for summary judgment is denied, and it is further,
ORDERED, that the Clerk of Court is directed to enter judgment accordingly.