Opinion
2012-11-8
Melissa KATZ, et al., Plaintiffs–Respondents, v. BLANK ROME TENZER GREENBLATT, et al., Defendants, 804 Lexington LLC, et al., Defendants–Appellants.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for 804 Lexington Avenue LLC, sued herein as 804 Lexington LLC, appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for Evnick Restaurant, Inc., doing business as Burger Heaven, appellant.
Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for 804 Lexington Avenue LLC, sued herein as 804 Lexington LLC, appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for Evnick Restaurant, Inc., doing business as Burger Heaven, appellant.
Drabkin & Margulies, New York (Ralph J. Drabkin of counsel), for respondents.
Order, Supreme Court, New York County (Louis B. York, J.), entered November 16, 2011, which denied the motions of defendants 804 Lexington LLC and Evnick *497Restaurant, Inc. d/b/a Burger Heaven (Burger Heaven) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Summary judgment was properly denied in this action where plaintiff Melissa Katz was allegedly injured when she fell down the winding staircase that led from Burger Heaven's dining room to the basement; defendant 804 Lexington LLC was the owner of the premises. Defendants have a duty to maintain the property in a reasonably safe condition ( see generally Kellman v. 45 Tiemann Assoc., Inc., 87 N.Y.2d 871, 638 N.Y.S.2d 937, 662 N.E.2d 255 [1995] ), and here, the configuration of the winding staircase and partial absence of a handrail at its turn, raise triable issues as to whether defendants were on constructive notice of a dangerous condition ( see Timmins v. Benjamin, 77 A.D.3d 1254, 910 N.Y.S.2d 584 [3d Dept. 2010];see also Swerdlow v. WSK Props. Corp., 5 A.D.3d 587, 772 N.Y.S.2d 864 [2d Dept. 2004] ).
We note however that contrary to the motion court's finding that there was a triable issue as to whether the subject stairs were in violation of Administrative Code of City of N.Y. § 27–375(e)(4) and (f), the record shows otherwise. The winding stairs that led from the dining room to the basement are not “interior stairs” within the meaning of the Administrative Code since they “did not serve as a required ‘exit,’ i.e., as a required ‘means of egress from the interior of a building to an open exterior space’ ” ( Maksuti v. Best Italian Pizza, 27 A.D.3d 300, 300, 811 N.Y.S.2d 375 [1st Dept. 2006],lv. denied7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006], quoting Administrative Code § 27–232; see Cusumano v. City of New York, 15 N.Y.3d 319, 324, 910 N.Y.S.2d 410, 937 N.E.2d 74 [2010];Kittay v. Moskowitz, 95 A.D.3d 451, 944 N.Y.S.2d 497 [1st Dept. 2012] ).