Opinion
Index No. 151919/2023
11-08-2024
John Fahim, Plaintiff, v. Adriana Estefania De Leon, Defendant.
Attorney for the Plaintiff Andrew George Sfouggatakis, Esq. Pavlounis & Sfouggatakis, LLP Attorney for the Defendant Cindy Newman, Esq. Lowe Barone & Newman
Unpublished Opinion
Attorney for the Plaintiff
Andrew George Sfouggatakis, Esq.
Pavlounis & Sfouggatakis, LLP
Attorney for the Defendant
Cindy Newman, Esq.
Lowe Barone & Newman
Ronald Castorina, Jr., J.
The following e-filed documents listed on NYSCEF (Motion No. 001) numbered 23-40, 44, 46-48 were read on this motion.
Upon the foregoing documents, and after oral argument conducted on October 16, 2024, on Motion Sequence No. 001, Motion Sequence No. 001is resolved and therefore, it is hereby, ORDERED, that Defendant's request for summary judgment pursuant to CPLR § 3212 dismissing all claims against Defendant on the grounds that there are no material issues of fact regarding Defendant's non-liability and dismissing each claim and cause of action asserted against Defendant is GRANTED; and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly.
Memorandum Decision
I. Procedural History
On or about October 17, 2023, Plaintiff commenced this negligence action to recover for personal injuries allegedly sustained by Plaintiff, John Fahim, because of a fall that occurred within 399 Cary Avenue, Staten Island, New York. Defendant filed Motion Sequence No. 001 by Notice of Motion on August 2, 2024 seeking (a) summary judgment pursuant to CPLR § 3212 dismissing all claims against Defendant on the grounds that there are no material issues of fact regarding Defendant's non-liability and Defendant is entitled to judgment as a matter of law; (b) dismissal of each claim and cause of action asserted against Defendant; and (c) for such other and further relief that this Court may deem just and proper.
Plaintiff filed opposition on September 25, 2024. Defendant filed reply on October 15, 2024. Oral argument was completed on October 16, 2024.
II. Facts
On February 22, 2023, at approximately 6:00 AM, Plaintiff, John Fahim, on duty as a New York City Police Officer, was executing a search warrant at 399 Cary Avenue, Staten Island, New York (hereinafter referred to as the "Premises"). (NY St Cts Filing [NYSCEF] Doc No. 30 at pages 16-17). The search warrant was executed on the second-floor apartment of the Premises. (see id pages 25-26). At the time of the incident, the premises was owned by the Defendant Adriana Estefania De Leon. (NY St Cts Filing [NYSCEF] Doc No. 31 at page 10). While executing the search warrant, Plaintiff fell down the "attic staircase" located within the Premises. (NY St Cts Filing [NYSCEF] Doc No. 30 at pages 34).
Plaintiff testified that the stairway in which the incident occurred was one flight of stairs that went from ground level to the second floor. (NY St Cts Filing [NYSCEF] Doc No. 30 at page 27, lines 17-25). Plaintiff was questioned regarding the sequence of events leading up to the incident:
Q. Can you describe for me, once you got to the premises, what you did and what happened to you?
A. Yes. The detective breached the door and we entered the apartment. The first team - well, the team was together, but a team broke off when they encountered some people - well, sorry. Let me back up.
After we breached the front door, there was a staircase to ascend to get to the second floor where the apartment was.
The first team encountered some individuals and they began to secure them and handcuff them and search them and then the second part of the team, they split off which I was part of.
We entered up to go up into the attic. That's where four, five of us went up the stairs into the attic and we encountered the individual up there.
And when I got to the top of the stairs is when I slipped and fell backwards.
Q. Okay. So you were part of the second team?
A. I don't want to say two teams, but half the team did break off to continue the search for the rest of the house. (see id at pages 25-26).
Q. And when you reached the top of the stairs, what was there?
A. There was a bedroom or a room.
Q. Did you have to open a door to get into that room?
A. I was further back in the line of detectives so I don't know if the door was open or they opened it.
Q. Okay. But there was a door to be opened from the stairway?
A. There was a room. I don't know if there was a door or just an open area, like a living room-type area where people were, but I know they encountered individuals in that area. Whether it was a bedroom or an open area, there was people there.
Q. Okay. Did the stairway continue passed that point?
A. No, once you got to the top of those stairs, you were on a second floor landing where there were a few rooms and bedrooms and then there was another door which led to an attic. (see id at page 28).
Q. Okay. Do you recall how many people were ahead of you as you ascended those stairs to the attic?
A. Four.
Q. Was there anyone behind you?
A. No. Well, can I rephrase? There was still the individuals that we left behind. They were still downstairs, but nobody else was on the staircase. (see id at page 29, lines 15-23).
Plaintiff was questioned as to whether he recalled if there was a handrail and testified that he did not recall as usually when ascending stairs in such a situation, officers "have our hands on the teammate in front" of them "to let them know we're behind them and we're not typically holding onto a handrail[.]" (see id at page 30, lines 9-18).
Plaintiff testified that he fell at landing at the top of the staircase. (see id at pages 33-34). Plaintiff further testified:
when I got to the top, I was holding him [the officer in front of him]. And then the individual who was in the bed on the left side, so everybody was on the left side, and that is when he moved in the bed, everybody took steps backwards and we bumped and that's where I lost my footing and I tried to grab either side with both my hands and that's when I fell down, trying to grab that handrail and the wall on the right side and the handrail was loose and I ended up falling down all those steps. (see id at page 34, lines 12-23).
Plaintiff testified that there was a handrail affixed only to the left side of the stairway. (see id at pages 34-35). Plaintiff was further questioned regarding his fall:
Q. So what happened to the handrail that's shown in that photograph depicted as P1 when you attempted to grab it?
A. Well, initially, I tried to grab those half walls because that wall did not go all the way up and I could not maintain balanced as I grabbed those walls, so then I went down and I tried to reach for the handrail on the left side and that was loose and I still couldn't maintain my balance and I ended up going down the stairs.
Q. How was the handrail loose?
A. It was shaking off of the wall.
Q. Did it become separated from the wall?
A. It didn't come off the wall, but it was shaking enough that there was more space that was in between, I guess where it screws in, it was shaking at that point.
Q. What do you mean, there was space in between where it was affixed to the wall?
A. Where it's supposed to be screwed into the wall, it was not secured. So as I grabbed the handrail, it pulled away from the wall and it was unstable.
Q. How far away from the wall did it pull?
A. Maybe a half inch or an inch. It was enough for the handrail just to be shaking as I was going down.
Q. So the handrail pulled out a half an inch or an inch, but did not become separated from the wall, is that accurate?
A. So I'm trying to be clear. The bracket that's securing the handrail to the wall did separate. That's what I meant. It came off of the wall, you know, up as it was shaking as I tried to grab it.
The handrail - there was more space that was now created between the wall and the handrail, but it did not come off of the wall. (see id at pages 35-37).
Plaintiff contends that when he slipped from the top landing, he was unable to regain his balance when he tried to grab for the handrail because it kept moving and it did not give him something sturdy to hang onto. (see id at page 41, lies 3-7).
Defendant purchased the property in December of 2022 (NY St Cts Filing [NYSCEF] Doc No. 31 at page 10, lines 11-13) and maintains that she had a home inspection performed in August of 2022 and there were no issues raised by the inspection. (see id at page 15, lines 2-6).
Defendant was questioned further:
Q. And when you did the home inspection prior to closing, did you have access to the second floor and attic?
A. No, the only time they allowed access and because it was petitioned by the previous owner was when we did the home inspection, um, then after that, or - at any other point, the only time we had access again was when they moved out. (see is at Page 35, lines 7-15).
Q. Did you ever receive any complaints from the tenant about the condition of the stairwell leading up to the second floor?
A. No.
Q. Did you ever receive any complaints from the tenant on the second floor regarding the stairwell leading up to the attic?
A. No.
Q. Did you ever receive any complaints from the tenant residing on the second floor regarding the handrail leading up to the second floor?
A. No.
Q. And did you ever receive any com plaints from the tenant residing on the second floor regarding the handrail going up to the attic?
A. No. (see id at Page 41, lines 8-25).
Plaintiff submitted a professional engineering report dated August 30, 2024. (NY St Cts Filing [NYSCEF] Doc No. 39). The professional engineer reviewed a series of photographs taken at the scene of the accident and visited the accident site on August 28, 2024. (see id).
III. Summary Judgment
"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974] citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 N.Y.2d 57 [1966]).
"As a prerequisite to recovery pursuant to a General Municipal Law § 205-e cause of action, 'a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties'" (see Kelly v City of New York, 134 A.D.3d 676 [2d Dept 2015] quoting Galapo v City of New York, 95 N.Y.2d 568 [2000]; citing Williams v City of New York, 2 N.Y.3d 352 [2004]).
"To establish a cause of action under General Municipal Law § 205-e, a police officer plaintiff must (1) identify the statute or ordinance with which the defendant failed to comply, (2) describe the manner in which the police officer was injured, and (3) set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm" (see id citing Williams v City of New York, 2 N.Y.3d 352 [2004]; Giuffrida v Citibank Corp., 100 N.Y.2d 72 [2003]; Gammons v City of New York, 24 N.Y.3d 562 [2014]).
NY CLS Gen Mun § 205-e [1] provides:
In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any police department injured..., such liability to be determined and such sums recovered in an action to be instituted by any person injured...
"Recovery under General Municipal Law § 205-e 'does not require proof of such notice as would be necessary to a claim in common-law negligence'" (see Mulham v City of New York, 110 A.D.3d 856 [2d Dept 2013] quoting Terranova v New York City Tr. Auth., 49 A.D.3d 10 [2d Dept 2007]). "Rather, the plaintiff must only establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant's part" (see id citing Alexander v City of New York, 82 A.D.3d 1022 [2d Dept 2011]; Terranova v. New York City Tr. Auth., 49 A.D.3d 10 [2d Dept 2007]).
General Municipal Law § 205-e "permits a police officer to bring a tort claim for injuries sustained 'while in the discharge or performance at any time or place of any duty imposed by... superior officer[s]' where such injuries occur 'directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments' (see Cioffi v S.M. Foods, Inc., 178 A.D.3d 1006 [2d Dept 2019] quoting General Municipal Law § 205-e [1]; Gammons v City of New York, 24 N.Y.3d 562 [2014]; Williams v. City of New York, 2 N.Y.3d 352 [2004]).
Plaintiff cites the First Department's holding that
"the duty imposed on building owners under Multiple Dwelling Law § 78 to keep their buildings in good repair is no more general than the duty imposed on the City under New York City Charter § 2903 [b] to keep its streets in good repair, and if the Charter provision is recognized as a valid predicate for General Municipal Law § 205-e liability (see Hayes v City of New York, 264 A.D.2d 610 [1st Dept 1999] citing Gonzalez v Iocovello, 93 N.Y.2d 539 [1999]; affg Cosgriff v City of New York, 241 A.D.2d 382 [1st Dept 1997]; Simons v City of New York, 252 A.D.2d 451 [1st 1998]; Palazzolla v City of New York, 248 A.D.2d 250 [1st Dept 1998]), so too should Multiple Dwelling Law § 78 be recognized as a valid predicate for General Municipal Law § 205-a liability. (see Hayes v City of New York, 264 A.D.2d 610 [1st Dept 1999]).
Plaintiff further cites New York Multiple Dwelling Law §52, which applies to "multiple dwelling erected after April eighteenth, nineteen hundred twenty-nine[.]" (see Mult D § 52 [1]).
The distinction here is that this incident did not occur in a Multiple Dwelling, which is defined as "a dwelling which is either rented, leased, let or hired out, to be occupied, or is occupied as the residence or home of three or more families living independently of each other." (see Mult D § 4 [7]). Defendant's property is a two-family home. (NY St Cts Filing [NYSCEF] Doc No. 31 at page 10, lines 14-16). The Court sua sponte obtained a copy of the property recording from the New York City Department of Finance, which also categorizes the property at 399 Cary Avenue, Staten Island, New York as 1-2 Family Dwelling. Therefore, Multiple Dwelling Law § 78 would be inapplicable to this property.
Plaintiff alleges that Defendant violated the Building Code § 27-558 Live loads for sidewalks, driveways, and railings, which requires:
(1) Railings and parapets around stairwells, balconies, areaways, and roofs, and other railings in similar locations other than those for places of assembly, shall be designed to resist the simultaneous application of a lateral force of forty plf and a vertical load of fifty plf, both applied to the top of the railing. For railings and parapets at the front of theater balconies and in similar locations in places of assembly, the lateral force shall be increased to fifty plf and the vertical load to one hundred plf. An exception is made for railings in one and two-family dwellings, which shall be designed for a lateral force of twenty plf plus a vertical load of twenty plf, both applied at the top of the railing. The total lateral force and total vertical load shall be at least two hundred pounds each.
(2) Intermediate and bottom rails, if provided, shall be designed for the simultaneous application of forty plf applied horizontally and fifty plf applied vertically; however, lateral and vertical design loads on intermediate and bottom rails need not be considered in the design of posts and anchorages. For railings having solid panels, the panels shall be designed for a uniform lateral load of twenty psf.
(3) Where railings or parapets support fixtures, allowance shall be made for the additional loads imposed thereby. (see NYC Administrative Code 27-558 [b] [1] [2] [3]).
Much of this code is inapplicable to the circumstances in this case. Regarding the sections applying to railings in one- and two-family homes, the Plaintiff provides no credible evidence that would demonstrate violations of the Code at the time of the incident.
Plaintiff contends that Defendant of § 305.1.1 of the 2020 Property Maintenance Code of New York State which provides:
The following conditions shall be determined as unsafe and shall be repaired or replaced to comply with the Building Code of New York State or the Existing Building Code of New York State as required for existing buildings, or the Residential Code of New York State as applicable:
1. The nominal strength of any structural member is exceeded by nominal loads, the load effects or the required strength.
2. The anchorage of the floor or roof to walls or columns, and of walls and columns to foundations is not capable of resisting all nominal loads of load effects.
3. Structures or components thereof that have reached their limit state.
4. Structural members are incapable of supporting nominal loads and load effects.
5. Stairs, landings, balconies and all similar walking surfaces, including guards and handrails, are not structurally sound, not properly anchored or are anchored with connections not capable of supporting all nominal loads and resisting all load effects.
6. Foundation systems that are not firmly supported by footings are not plumb and free from open cracks and breaks, are not properly anchored or are not capable of supporting all nominal loads and resisting all load effects.
Exceptions:
1. Where substantiated otherwise by an approved method.
2. Demolition of unsafe conditions shall be permitted where approved by the building official. (2020 New York State Property Maintenance Code, Chapter 3 General Requirements, https://codes.iccsafe.org/content/NYSPMC2020P1/chapter-3-general-requirements#NYSPMC2020P1_Ch03_Sec305 [last accessed October 23, 2024]).
Plaintiff provides no specific evidence demonstrating that at the time of the incident Defendant was in violation of the § 305.1.1 of the 2020 Property Maintenance Code of New York State. Plaintiff's allegation that he "grabbed the handrail, it pulled away from the wall and it was unstable" (NY St Cts Filing [NYSCEF] Doc No. 35 at page 36, lines 13-14), is not supported by anything other than the Plaintiff's self-serving statement. § 305.1.1 of the 2020 Property Maintenance Code of New York State considers nominal loads and load effects as the test for being unsafe and in need of repair. The statute does not consider excessive loads. In this situation, involving an officer of unknown size and weight, including the weight of gear, weapons, and body armor as well as an unknown amount of force impacted upon him and transferred to the railing by the retreating officers preceding him.
Plaintiff further submits the conclusory and unsupported opinion of an engineer who inspected the subject premises on August 28, 2024, a year, and a half after the accident. Moreover, his inspection was conducted after renovations to the handrail and staircase, wherein a new handrail was installed, and carpeting removed. (NY St Cts Filing [NYSCEF] Doc No. 39).
"The opinion testimony of an expert must be based upon facts in the record or personally known to the witness. An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion" (see Zeppetelli v 1372 Broadway, LLC, 222 A.D.3d 813 [2d Dept 2023] citing Ali v. Chaudhry, 197 A.D.3d 1084 [2d Dept 2021]; Johnson v Robertson, 131 A.D.3d 670 [2d Dept 2015]; Plainview Water Dist. v Exxon Mobil Corp., 66 A.D.3d 754 [2d Dept 2009]).
"Where a plaintiff's expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, the opinion should be given no probative force and it is insufficient to withstand a motion for summary judgment" (see Courtney v. Port Auth. of NY & N. J., 34 A.D.3d 716 [2d Dept 2006] citing Diaz v. NY Downtown Hosp., 99 N.Y.2d 542 [2002]; DiMitri v Monsouri, 302 A.D.2d 420 [2d Dept 2003]; Holbrook v United Hosp. Med. Ctr., 248 A.D.2d 358 [2d Dept 1998]).
Plaintiff contends that Defendant was in violation of NYC Administrative Code § 27-2005 [c] which requires:
The owner of a one- or two-family dwelling shall keep the premises in good repair, and shall be responsible for compliance with the provisions of this code, except to the extent otherwise agreed between such owner and any tenant of such dwelling by lease or other contract in writing, or except insofar as responsibility for compliance with this code is imposed upon the tenant alone. (see NYC Administrative Code § 27-2005 [c]).
Plaintiff has presented no evidence that Defendant was not in full compliance with NYC Administrative Code § 27-2005 [c].
Plaintiff cites NYC Building Code (1938), Sub-Article 4. Required Stairways, 6.4.1.1 §C26-291.0 (https://www.nyc.gov/assets/buildings/building_code/1938BC_ARTICLE7.pdf [last accessed October 23, 2024]), which provides for "Width of interior required stairs." Plaintiff provides no connective tissue of how Defendant's building was in violation of this part of the code.
Plaintiff cites the New York City Building Code (2014), Chapter 10 Means of Egress, § 1001.1, § 1009.6.1 (https://codes.iccsafe.org/content/NYNYCBC2014E1014/chapter-10-means-of-egress [last accessed October 23, 2024]).
Buildings or portions thereof shall be provided with a means of egress system as required by this chapter. The provisions of this chapter shall control the design, construction and arrangement of means of egress components required to provided an approved means of egress from structures and portions thereof. (New York City Building Code (2014), Chapter 10 Means of Egress, § 1001.1, https://codes.iccsafe.org/content/NYNYCBC2014E1014/chapter-10-means-of-egress [last accessed October 23, 2024]).
All stairways shall be built of materials consistent with the types permitted for the type of construction of the building, except that wood handrails shall be permitted for all types of construction. (New York City Building Code (2014), Chapter 10 Means of Egress, § 1009.6.1, https://codes.iccsafe.org/content/NYNYCBC2014E1014/chapter-10-means-of-egress [last accessed October 23, 2024]).
Plaintiff again cites statutes but not only provides no credible evidence of Defendant being in violation of the code but also fails to provide any connective tissue of what the alleged violation of this part of the code was.
Plaintiff cites the following sections of the Property Maintenance Code of New York State (2010):
Purpose. This code is intended to provide minimum requirements to safeguard public safety, heath and general welfare insofar as they are affected by the occupancy and maintenance of structures and premises. (2010 Property Maintenance Code of New York State, § 101.3, https://codes.iccsafe.org/content/NYPMC2010/chapter-1-general-requirements [last accessed October 23, 2024]).
Unsafe structures. An unsafe structure is one that is found to be dangerous to the life, health, property or safety of the public or the occupants of the structure by not providing minimum safeguards to protect or warn occupants in the event of fire, or because the structure contains unsafe equipment or is so damaged, decayed, dilapidated, structurally unsafe, or of such faulty construction or unstable foundation, that partial or complete collapse is possible. (2010 Property Maintenance Code of New York State, § 107.1.1, https://codes.iccsafe.org/content/NYPMC2010/chapter-1-general- requirementsNo.NYSPMC2010P1_Ch01_Sec107 [last accessed October 23, 2024]).
Plaintiff's allegation is that he "grabbed the handrail, it pulled away from the wall and it was unstable" (NY St Cts Filing [NYSCEF] Doc No. 35 at page 36, lines 13-14). In no way does this arise to the level that the Defendant's home was an "unsafe structure" pursuant to § 107.1.1 of the afore cited Maintenance Code.
Structure unfit for human occupancy. A structure is unfit for human occupancy whenever such structure is unsafe, unlawful or, because of the degree to which the structure is in disrepair or lacks maintenance, is insanitary, vermin or rat infested, contains filth and contamination, or lacks ventilation, illumination, sanitary or heating facilities or other essential equipment required by this code, or because the location of the structure constitutes a hazard to the occupants of the structure or to the public. (2010 Property Maintenance Code of New York State, § 107.1.3, https://codes.iccsafe.org/content/NYPMC2010/chapter-1-general-requirements#NYSPMC2010P1_Ch01_Sec107 [last accessed October 23, 2024]).
Plaintiff's allegation that the handrail was loose on the wall when he grabbed at it (NY St Cts Filing [NYSCEF] Doc No. 35 at page 40, lines 4-7), does not demonstrate that the Defendant's home was unfit for human occupancy.
Stairs and walking surfaces. Every stair, ramp, landing, balcony, porch, deck or other walking surface shall be maintained in sound condition and good repair. (2010 Property Maintenance Code of New York State, § 305.4, https://codes.iccsafe.org/content/NYPMC2010/chapter-3-general-requirements [last accessed October 23, 2024]).
Handrails and guards. Every handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition. (2010 Property Maintenance Code of New York State, § 305.5, https://codes.iccsafe.org/content/NYPMC2010/chapter-3-general-requirements [ last accessed October 23, 2024]).
Plaintiff cites the following section of the International Property Maintenance Code (2021):
Stairs and walking surfaces. Every handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition. (International Property Maintenance Code (2021) § 305.4, https://codes.iccsafe.org/content/IPMC2021P2/chapter-3-general-requirements#IPMC2021P2_Ch03_Sec305 [last accessed October 23, 2024]).
Plaintiff further cites the following section of the International Residential Code (2021):
Nosings. Nosings at treads, landings and floors of stairways shall have a radius of curvature at the nosing not greater than 9/16 inch (14 mm) or a bevel not greater than ½ inch (12.7 mm). a nosing projection not less than ¾ inch (19 mm) and not more than 1 ¼ inches (32 mm) shall be provided on stairways. The greatest nosing projection shall not exceed the smallest nosing projection by more than 3/8 inch (9.5 mm) within a stairway.
Exception: A nosing projection is not required where the tread depth is not less than 11 inches (279 mm). (International Residential Code (2021) § R311.7.5.3, https://codes.iccsafe.org/content/IRC2021P2/chapter-3-building-planning#IRC2021P2_Pt03_Ch03_SecR311 [last accessed October 23, 2024]).
Continuity. Handrails shall be continuous for the full length of the flight, from a point directly above the top riser of the flight to a point directly above the lowest riser of the flight. Handrail ends shall be returned toward a wall, guard walking surface continuous to itself, or terminate to a post.
Exception:
1. Handrail continuity shall be permitted to be interrupted by a newel post at a turn in a flight with winders, at a landing, or over the lowest tread.
2. A volute, turnout or starting easing shall be allowed to terminate over the lowest tread and over the top landing. (International Residential Code (2021) § R311.7.8.4, https://codes.iccsafe.org/content/IRC2021P2/chapter-3-building-planning#IRC2021P2_Pt03_Ch03_SecR311 [last accessed October 23, 2024]).
Defendant purchased the Premises in December 2022. (NY St Cts Filing [NYSCEF] Doc No. 31 at page 10, lines 11-13). Prior to the purchase of the Premises, there was an inspection of the Premises in August 2022. (see id at page 15, line 2). There were no issues at the time of the inspection. (see id at lines 4-6) and Defendant testified that, "when I did the walk-through with my, um - with the person who was doing the home inspection, he told me that, um, when I do renovations or if I wanted to update it [the handrail], you know, I could, but he didn't mention anything that had to be changed." (see id at page 30, lines 11-16).
Defendant testified further that the handrail at issue was not in need of any repair when she purchased the home. (see id at page 32, lines 4-8). Defendant further testified,
Q. Now, were there tenants before Miss Donnelly?
A. In the second floor, yes.
Q. And roughly when did those tenants move into the space?
A. When they moved in? I'm not sure. They were already, um - they were already living there when I purchased the home.
Q. Did those tenants pay you rent?
A. No. They were supposed to but they, um, never did, so we served them a 30-day notice, uh, roughly about February of 2023, um, because they just didn't want to communicate, um, with us[.] (see id at page 33, lines 6-18).
Q. So did they use both the second floor and the attic area?
A. Yes.
Q. And when you did the home inspection prior to closing, did you have access to the second floor and attic?
A. No, the only time they allowed access and because it was petitioned by the previous owner was when we did the home inspection, um, then after that, or - at any other point, the only time we had access again was when they moved out. (see id at page 35, lines 4-15).
Q. As far as you knew following the closing, how many people were residing in the second floor apartment?
A. As far as I knew, it was the main tenant, his wife or girlfriend, I'm not sure, and, um, his two kids.
Q. Did you ever receive any complaints from the tenant about the condition of the stair-well leading up to the second floor?
A. No.
Q. Did you ever receive any complaints from the tenant on the second floor regarding the stairwell leading up to the attic?
A. No.
Q. Did you ever receive any complaints from the tenant residing on the second floor regarding the handrail leading up to the second floor?
A. No.
Q. And did you ever receive any complaints from the tenant residing on the second floor regarding the handrail going up to the attic?
A. No. (see id at page 41, lines 2-25).
No renovations were performed on the Premises until seven months after the incident involving the Plaintiff. (see id at pages 13-14).
"As a prerequisite to recovery pursuant to a General Municipal Law § 205-e cause of action, 'a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties'" (see Kelly v City of New York, 134 A.D.3d 676 [2d Dept 2016] quoting Galapo v City of New York, 95 N.Y.2d 568 [2000]; citing Williams v City of New York, 2 N.Y.3d 352 [2004]).
"A police officer seeking to recover under General Municipal Law § 205-e must identify a statute or ordinance with which the defendant failed to comply and must, in addition, set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused harm to him or her" (see Wall v Starbucks Corp., 211 A.D.3d 767 [2d Dept 2022] quoting Quinto v NY City Transit Auth., 7 A.D.3d 689 [2d Dept 2004]; citing Williams v City of New York, 2 N.Y.3d 352 [2004]; Vaughn v Veolia Transp., Inc., 138 A.D.3d 979 [2d Dept 2016]).
Defendant in this matter was the owner of the Premises for approximately two months. There had been an inspection of the Premises in August 2022 and there were no issues. At the time of closing, the non-paying tenants, who would require the commencement of an eviction proceeding, refused access, which continued until after the incident involving the Plaintiff. At no time did the tenants advise the Defendant of any issues with the handrailing. In order to gain access to her property, the Defendant testified that she served the tenants with a 30-day notice in February 2023. (NY St Cts Filing [NYSCEF] Doc No. 31 at page 33, lines 14-17).
Plaintiff used a shotgun approach in attempting to identify every possible statute and guideline that may have been violated by the alleged stubby and loose railing, he was unable to provide credible evidence of the alleged noncompliant railing at the time of the incident. Plaintiff further failed to demonstrate, prima facie, the Defendant's "neglect, omission, willful or culpable negligence" in allegedly violating Property Maintenance Code of New York State §§ 305.4; 305.5 (2010); Property Maintenance Code (2021) § 305.4; International Residential Code (2021) §§ R311.7.5.3; R311.7.8.4. (see Stancarone v Sullivan, 167 A.D.3d 676 [2d Dept 2018] quoting NY CLS Gen Mun § 205-e ; citing Alexander v City of New York, 82 A.D.3d 1022 [2d Dept 2011]).
Accordingly, the Defendant's request for summary judgment pursuant to CPLR § 3212 dismissing all claims against Defendant on the grounds that there are no material issues of fact regarding Defendant's non-liability and dismissing each claim and cause of action asserted against Defendant is GRANTED.
IV. Decretal Paragraphs
It is hereby ORDERED, that Defendant's request for summary judgment pursuant to CPLR § 3212 dismissing all claims against Defendant on the grounds that there are no material issues of fact regarding Defendant's non-liability and dismissing each claim and cause of action asserted against Defendant is GRANTED, and it is further;
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of the Court.