Bautista v. 85TH Columbus Corp.
| Decision Date | 26 November 2013 |
| Citation | 976 N.Y.S.2d 806,42 Misc.3d 651,2013 N.Y. Slip Op. 23402 |
| Parties | Nicholas Romero BAUTISTA, Plaintiff, v. 85TH COLUMBUS CORPORATION and Ari Paul and Mary Schreiber, individually and d/b/a RCR Management LLC, Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Gerard A. Lucciola, Esq., Rosato and Lucciola, PC, for plaintiff.
Tracy L. Frankel, Esq., Farber Brocks & Zane LLP, Garden City, for defendants.
SHARON A.M. AARONS, J.
Defendants move (1) for summary judgment pursuant to CPLR 3212 dismissing the first cause of action of the complaint against all defendants, and (2) to dismiss the second cause of action for failure to state a cause of action pursuant to CPLR 3211. Plaintiff submits written opposition. The defendants' motion is granted in its entirety, and the complaint is dismissed.
The instant motion presents an issue not squarely addressed in any reported case, i.e., whether a sidewalk basement stairway, accessed through trap doors set into the sidewalk, is an “interior stair” within the meaning of the 1968 Building Code of City of New York (Administrative Code of City of N.Y.) § 27–375. Because the court finds in the negative, it grants the motion dismissing the complaint against the out-of-possession owners in its entirety pursuant to CPLR 3212 and 3211.
Plaintiff commenced this action for personal injuries against the defendants, the owners and managers of premises located at 524 Columbus Avenue, in Manhattan. The plaintiff was allegedly injured on October 23, 2008, when, during the course of his employment, he slipped and fell on a stairway leading from sidewalk doors into the cellar of the premises. A conveyor belt had been installed on top of the stairway by the tenant, non-party KND Corp., which leased the ground level and basement area and operated a delicatessen. The conveyor belt was used to transport deliveries from the sidewalk-level to the basement of a KND Corp.'s store. Defendant 85th Columbus Corporation (Columbus) owned the premises; defendant Mary Schreiber, sued individually, was the president of defendant Columbus; defendant RCR Management LLC (RCR) was the managing agent; and defendant Ari Paul was an employee of RCR.
The basement area of the premises leased to KND Corp. was accessible by means of an interior stairway, as well as the stairway from the sidewalk area into the basement level on which the accident occurred. The stairway from the sidewalk, as is common in the City of New York, was enclosed within two trap doors set into the sidewalk. Past these trap doors, a metal stairway lead into the basement. On top of the metal stairs leading from the sidewalk doors into the basement, approximately thirty years ago, KND Corp. installed a mechanized conveyor belt, which obstructed most of the stairway, leaving only approximately 14 inches of step accessible.
The plaintiff acknowledged at his deposition that he had, in the past, gained access to the basement by using the interior stairway located inside the Deli. The stairway leading to the sidewalk was used for deliveries, not access to the basement. Generally, when deliveries were being received at the deli, one employee would stay at the street level to load merchandise onto the conveyor, and the other would remain at the base of the conveyor, in the basement, to unload the merchandise.
According to the plaintiff, in order to turn on the conveyor belt, he was required to walk half way up the obstructed stairway to access the switch. In an affidavit annexed to the moving papers, Howard Shim, the principal of KND Corp., averred that, to the contrary, the switch was located on the wall to the right of the machine, and could be readily accessed by anyone standing in the basement to the right of the conveyor belt. Plaintiff's conduct in turning on the belt by climbing the obstructed stairway “was not the proper procedure to be used to turn on the conveyor belt, nor was it the procedure which I instructed my employees to use.” In any event, the plaintiff testified that on the day of the accident, he activated the machine by ascending half-way up the staircase. He stated that, when he turned around on the narrow step to begin his descent, due to the narrowness of the stairway, the absence of a handrail, and the alleged slippery condition of the stair tread, he fell forward, and his hand became entangled in the machine.
While the lease permitted Columbus to access the premises and make repairs at its option, the responsibility for making all repairs remained on the tenant, non-party KND Corp. Moreover, the lease provided that the owner was not responsible for alterations and improvements made by the tenant.
Defendants' expert, Denise P. Bekeart, a licensed architect, stated in an affidavit annexed to the moving papers, that the building was a commercial establishment, and thus not subject to the Multiple Dwelling Law. In addition, she stated that the building was subject to the 1968 Building Code, which was in effect from December 1968 to July 1, 2008. She examined the steps, finding them to be in good condition, with diamond plate treads, which are “not known to be slippery when not contaminated by debris.” The steps were of the kind commonly used for unloading and loading merchandise, and were not for egress, as the presence of pedestrians on the sidewalk would block emergency egress. As such, the stairs were not, she maintained, required for egress and not subject to the requirements of an exit or egress stair. According to the expert, the steps were not in violation of the 1968 Building Code of City of New York (Administrative Code of City of N.Y.) § 27–375, as that section applies only to “interior stairs” or “exit stairs,” and not the subject staircase. Lastly, she stated that the switch to activate the conveyor belt was readily accessible by a person standing in the basement.
In opposition, plaintiff's expert, a licensed professional engineer, stated, based on an inspection performed at an unspecified date, that the stairs were maintained in a slippery and unsafe condition, in that the treads were “poorly maintained...shiny and worn,” and that, “due to the presence of the conveyor belt, only 13” of usable step was available for passage. From a reading of his affidavit, it is clear he agreed with the defendants that this case is governed by the 1968 Administrative Code. He opined that the stairway was in violation of the following sections of the 1968 Administrative Code: §§ 27–127 and 27–128 (); § 27–375 (slip resistant tread). He also contended that the defendants violated New York State Building §§ 1009.1 (step width); 1009.2 (headroom); and 1009.11 (handrails). Although not dispositive of the main issue in this case, plaintiff's expert conceded in his report that plaintiff could have accessed the switch for the conveyor belt without climbing the steps.
Defendants argue, generally, that the stairway itself was not defective, and that while the clearance for passage was blocked by the installation of the conveyor belt, they themselves cannot be liable for the tenant's installations. Defendants contend that they did not install or maintain the conveyor belt, nor were they responsible for maintaining the tenant's alterations; that they had no notice of any defective condition; that the alleged slippery condition of the steps was not a structural defect; that the sole proximate cause of the accident was plaintiff's improper use of the stairway; that there is no evidence warranting individual liability for the defendants individually sued; that the doctrine of res ipsa loquitur does not apply; and that the second cause of action does not state a cognizable claim. 1
Plaintiff contends that issues of fact exist, including whether defendants had actual or constructive notice of the condition of the steps and the conveyor belt; whether the presence of the conveyor belt violated the Building Code; whether the steps were in violation of custom and practice for stair construction and maintenance; and whether the alleged defects were the proximate cause of plaintiff's injury.
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986].) The moving party must tender 2 sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the “burden of production” (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus “if the evidence on the issue is evenly balanced, the party that bears the burden must lose.” ( 300 East 34th Street Co. v. Habeeb, 248 A.D.2d 50, 683 N.Y.S.2d 175 [1st Dept.1997].)
The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957] ). Since summary judgment is a drastic remedy, which should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141 [1978].) Consequently, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 N.Y.2d 8, 167 N.E.2d 328, 200 N.Y.S.2d 627 [1960]; Sillman, 3 N.Y.2d at 404, 144 N.E.2d at 392, 165 N.Y.S.2d at 505.)
The role of the court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. As the Court stated in Knepka v. Tallman, 278 A.D.2d 811, 718 N.Y.S.2d 541 [4th Dept.2000]:
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