Opinion
11-18-2015
Joel FISHELSON, respondent, v. KRAMER PROPERTIES, LLC, et al., appellants.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellants. Edward W. Armstrong, New York, N.Y. (Mitchell A. Greene of counsel), for respondent. WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellants.
Edward W. Armstrong, New York, N.Y. (Mitchell A. Greene of counsel), for respondent.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.
Opinion
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lebowitz, J.), dated March 20, 2014, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff allegedly was injured when he fell while descending a single-step riser inside a bagel store in Queens. The plaintiff thereafter commenced this action against the owner of the building, its tenant, and the tenant's employer, which operated the bagel store. The plaintiff testified at his deposition that the single-stop riser led to an elevated dining area with tables and chairs, that he had ascended the riser without difficulty 45 minutes before his accident, and that he saw the riser prior to descending at the time of his accident. After discovery, the defendants collectively moved for summary judgment dismissing the complaint, contending that the step was open and obvious and not inherently dangerous as a matter of law and that the New York City Building Code did not require that handrails be installed. The plaintiff argued in opposition that there were insufficient visual cues alerting the plaintiff to the step, and that triable issues of fact were raised by the affidavit of his expert, who opined that a single-step riser is an inherently dangerous condition and that the Building Code required handrails to have been installed. The Supreme Court denied the defendants' motion.
12 “An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition” (Boudreau–Grillo v. Ramirez, 74 A.D.3d 1265, 1267, 904 N.Y.S.2d 485 [internal quotation marks omitted]; see Basso v. Miller, 40 N.Y.2d 233, 235, 386 N.Y.S.2d 564, 352 N.E.2d 868; Varon v. New York City Dept. of Educ., 123 A.D.3d 810, 811, 998 N.Y.S.2d 433; Coppola v. Cure of Ars R.C. Church, 119 A.D.3d 726, 726, 989 N.Y.S.2d 314), and must warn of any dangerous or defective condition of which it has actual or constructive notice (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774; Fajardo v. Schapiro, 120 A.D.3d 468, 469, 990 N.Y.S.2d 269). “ ‘However, a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous' ” (Surujnaraine v. Valley Stream Cent. High School Dist., 88 A.D.3d 866, 866, 931 N.Y.S.2d 119, quoting Katz v. Westchester County Healthcare Corp., 82 A.D.3d 712, 713, 917 N.Y.S.2d 896; see Varon v. New York City Dept. of Educ., 123 A.D.3d at 811, 998 N.Y.S.2d 433; Coppola v. Cure of Ars R.C. Church, 119 A.D.3d at 726, 989 N.Y.S.2d 314; Cupo v. Karfunkel, 1 A.D.3d 48, 50–53, 767 N.Y.S.2d 40). A court may determine whether a condition is hazardous and open and obvious as a matter of law “when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence” (Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107).
3 The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the subject step complied with the relevant Building Code requirements and that it was open and obvious and not inherently dangerous (see Varon v. New York City Dept. of Educ., 123 A.D.3d at 810, 998 N.Y.S.2d 433; Coppola v. Cure of Ars R.C. Church, 119 A.D.3d at 726, 989 N.Y.S.2d 314; Nelson v. 40–01 N. Blvd. Corp., 95 A.D.3d 851, 852, 943 N.Y.S.2d 216; Tyz v. First St. Holding Co., Inc., 78 A.D.3d 818, 819, 910 N.Y.S.2d 179; Bretts v. Lincoln Plaza Assoc., Inc., 67 A.D.3d 943, 944, 890 N.Y.S.2d 87; Murray v. Dockside 500 Mar., Inc., 32 A.D.3d 832, 821 N.Y.S.2d 608). The burden then shifted to the plaintiff to defeat the defendants' motion with “proof demonstrating the existence of an issue of fact as to whether other circumstances prevailed which could lead the trier of fact to conclude that a dangerous condition existed which was a substantial cause of the [accident] resulting in the plaintiff['s] ... injury” (Murray v. Dockside 500 Mar., Inc., 32 A.D.3d at 833, 821 N.Y.S.2d 608). Contrary to the Supreme Court's determination, the plaintiff failed to raise a triable issue of fact.
Given the plaintiff's testimony that he perceived the step at issue before he descended from the platform, his contentions that the design of the step created “optical confusion” (Smith v. South Bay Home Assn., Inc., 102 A.D.3d 668, 669, 957 N.Y.S.2d 728; see Roros v. Oliva, 54 A.D.3d 398, 399–400, 863 N.Y.S.2d 465), and that there were insufficient visual cues alerting him to the existence of the step, do not raise a triable issue of fact (see Murray v. Dockside 500 Mar., Inc., 32 A.D.3d at 833, 821 N.Y.S.2d 608).
4 The plaintiff also failed to raise a triable issue of fact as to whether the Building Code or accepted engineering practices required handrails to have been installed. Where “the configuration and location” of a step or stairway is not at issue, the applicability of the requirements of the Building Code “is a question of law to be resolved by the court” (Mansfield v. Dolcemascolo, 34 A.D.3d 763, 764, 826 N.Y.S.2d 115; see Lopez v. Chan, 102 A.D.3d 625, 626, 959 N.Y.S.2d 67). Contrary to the plaintiff's contentions, Building Code § 27–369, which applies to “corridors,” and Building Code § 27–375, which applies to “interior stairs” that serve as a “required exit,” are inapplicable in this case (Administrative Code of City of New York § 27–232; see Cusumano v. City of New York, 15 N.Y.3d 319, 325, 910 N.Y.S.2d 410, 937 N.E.2d 74; Fajardo v. Schapiro, 120 A.D.3d 468, 469, 990 N.Y.S.2d 269; Remes v. 513 W. 26th Realty, LLC, 73 A.D.3d 665, 666, 903 N.Y.S.2d 8; Schwartz v. Hersh, 50 A.D.3d 1011, 1011–1012, 856 N.Y.S.2d 640; Dooley v. Vornado Realty Trust, 39 A.D.3d 460, 460, 835 N.Y.S.2d 237). The plaintiff's expert's bare conclusion that handrails were required because “[t]he use of a single step departed from good and commonly accepted safe industry practices” and that “safe practice is to avoid such design” is also insufficient to raise a triable issue of fact (see Pirie v. Krasinski, 18 A.D.3d 848, 850, 796 N.Y.S.2d 671).
Lastly, given that the Building Code did not require that handrails be installed, as well as the absence of any evidence that the subject step was otherwise defective or inherently dangerous, the plaintiff's testimony that he reached into the air hoping to find a bannister before stepping down did not require denial of the defendants' motion (see Fajardo v. Schapiro, 120 A.D.3d 468, 990 N.Y.S.2d 269; cf. Richichi v. CVS Pharmacy, 127 A.D.3d 951, 7 N.Y.S.3d 398; Palmer v. Prima Props., Inc., 101 A.D.3d 1094, 1095, 956 N.Y.S.2d 537; Zebzda v. Hudson St., LLC, 72 A.D.3d 679, 897 N.Y.S.2d 727; Ocasio v. Board of Educ. of City of N.Y., 35 A.D.3d 825, 827 N.Y.S.2d 265).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.