Opinion
No. 302406/2009.
2012-02-24
Mary E. Gibbs, Plaintiff, v. 3220 NETHERLAND OWNERS CORP., Defendant.
Alpert and Kaufman for plaintiff. Gannon, Lawrence & Goldfarb for defendant.
Alpert and Kaufman for plaintiff. Gannon, Lawrence & Goldfarb for defendant.
KENNETH L. THOMPSON JR., J.
Defendant's motion or an Order pursuant to CPLR § 3212 granting summary judgment and Plaintiff's cross-motion for an Order pursuant to CPLR § 3042(b) seeking leave to amend her Bill of Particulars are consolidated for Decision herein.
Defendant's motion is GRANTED.
Plaintiff's cross-motion is DENIED.
Background
Plaintiff alleges that she slipped and fell in water located on an interior stairway within Defendant's building. The stairway was located between the first floor and the lobby. Defendants are seeking summary judgment on the grounds that it did not cause or create the condition, nor did it have actual or constructive notice of the condition. Plaintiff opposes the motion on the grounds that Defendant created the slippery condition by failing to install foot traction/slip resistant materials on the stairway and by painting the concrete step with high gloss enamel paint. Plaintiff wishes to amend her Bill of Particulars to these claims forwarded by her opposition to Defendant's motion.
MSJ STANDARD
“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b] ) and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b] ).” Friends of Animals v. Assoc.Fur Mfrs., 46 N.Y.2d 1065, 1067–68. In order to subject a property owner to liability for a hazardous condition on its premises, a plaintiff must demonstrate that the owner created, or had actual or constructive notice of the dangerous condition, which precipitated the injury. In the case of actual or constructive notice, plaintiff must also show that the owner had a sufficient opportunity, with the exercise of reasonable care, to remedy the situation.
Smith v. Costco Wholesale Corp., 50 AD3d 499, 500 (citations omitted). “[T]he burden is on the plaintiff to prove not only that a dangerous condition existed on the premises but also that the landlord had notice of that condition and a reasonable opportunity to repair it,” Juarez by Juarez v. Wavecrest Mgmt. Team, 88 N.Y.2d 628, 642.
Discussion
Defendant has met its prima facie burden of showing that it did not cause or create the condition at issue, or that it had actual or constructive notice of the condition. Plaintiff's opposition does not address these issues whatsoever. Rather, Plaintiff submitted the Affidavit of Stanley Fein, Professional Engineer, who opined that Defendant departed from good and accepted building safety practices by failing to install foot traction/slip resistant materials in the tread of the step in question as required by New York City Building Code § C26–292.0 (6.4.1.7.1(g)) and by painting the stairway with high gloss enamel paint. The Court finds that Plaintiff's expert has failed to raise a triable issue of fact for two reasons.
Exit stairs
First, New York City Building Code § C26–292.0 (6.4.1.7.1(g)) is inapplicable because the stair at issue was not an “exit stair.” Stairs and stairways serving an exit shall be constructed of incombustible material or assemblies throughout, except in frame and non-fireproof structures forty feet or less in height and occupied by fifty or less persons above the first story. The treads and landings shall be constructed and maintained in such manner as to prevent persons from slipping thereon.
New York City Building Code § C26–292.0 (6.4.1.7.1(g)) (emphasis added).
“As a matter of statutory construction, a court must attempt to effectuate the intent of the Legislature and where the terms of a statute are clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used.” Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 442. “Exit” means “a way out.” Black's Law Dictionary, 7th ed. at 596. The stairwell where Plaintiff allegedly slipped and fell took her from the first floor to the lobby—not out of the building itself. Thus, it is not a “required exit stair.” Compare Truncellito v.. Carroll's Florist Corp., 2010 N.Y. Slip Op 20152 (finding that “two steps that lead up from the entry doors to the main floor” were “required exit stairs” under § C26–292.0), with Union Bank & Trust Co. V. Hattie Carnegie, Inc., 1 A.D.2d 199, 200 (finding that stairs that “led only from the fitting room to the main salon” were not “required exit stairs”). The code cited to by Mr. Fein in support of his claim that Defendant should have installed foot traction/slip resistant materials on the stairway is inapplicable.
Unsupported opinion
Next, Mr. Fein's opinion regarding Defendant painting the stair in high gloss enamel paint is unsupported by the facts and law, and is fraught with speculation and conjecture. Mr. Fein surmises that the high gloss enamel pain prevented any water from bing absorbed, thus, causing Plaintiff's alleged mishap. Mr. Fein failed to conduct any testing on the surface to see if the paint made the step dangerous. See Sanders v. Morris Hgts. Mews Assoc., 69 AD3d 432 (rejecting Mr. Fein's opinion because he “failed to reference a specific standard by asserting a minimum acceptable coefficient of friction”). Nor does he cite to any specific industry standard that was violated by the use of this “high gloss enamel paint.” See Sarmiento v. C & E Assoc., 40 AD3d 524.
Amendment
Plaintiff wishes to amend her Bill of Particulars to include: reference to New York City Building Code § C26–292.0 (6.4.1.7.1(g)), instead of § 27–375(h); a claim of negligence based on painting the stair high gloss enamel paint; claims of notice regarding the missing treads and the paint. “Amendment of a bill of particulars is freely given absent prejudice or surprise unless the amendment is sought on the eve of trial.” Singh v. Rosenberg, 32 AD3d 840, 842. An amendment may be denied, however, if it appears to ve plainly without merit. Sihly v. NYCTA, 282 A.D.2d 337. The Court determined in deciding Defendant's motion for summary judgment that none of these claims—as posted by Mr. Fein—were sufficient to forestall granting Defendant's application. Thus, they are “plainly without merit.”
The foregoing shall constitute the decision and order of this Court.