Summary
In Conti v Kimmel (255 AD2d 201 [1st Dept 1998]), plaintiff, who fell through an open trap door, argued that the out of possession landlord was negligent, citing ANSI code and OSHA regulations.
Summary of this case from EPPS v. MARCO POLO CATERERSOpinion
November 17, 1998
Appeal from the Supreme Court, New York County (Carol Huff, J.).
Plaintiff's expert testified that the closed trap door was not structurally defective. The door became unsafe only after it was left in an open position. In these circumstances, the out-of-possession landlord cannot, as a matter of law, be held liable for plaintiff's injuries ( Brown v. Weinreb, 183 A.D.2d 562). Plaintiff's presently asserted claims relying on former provisions of the New York State Industrial Code (12 NYCRR 16.2 [e]; 16.5, 16.8) are unpreserved since they were not raised before the trial court ( supra, at 563). In any event, the cited Code provisions do not impose a statutory obligation on the landlord to equip trap doors with moveable railings or other devices to prevent injury ( see, Fant v. Mayer, 250 A.D.2d 355; Brown v. Weinreb, supra). Plaintiff's reliance on OSHA regulations and the ANSI Code is similarly unavailing since these non-statutory provisions cannot be the basis of constructive notice imputed to the landlord ( Velazquez v. Tyler Graphics, 214 A.D.2d 489).
Concur — Nardelli, J. P., Rubin, Tom and Andrias, JJ.