Beedenbender v. Midtown Properties, Inc.

• Decision Date: 28 June 1957
• Citation: Beedenbender v. Midtown Properties, Inc., 4 A.D.2d 276, 164 N.Y.S.2d 276 (N.Y. App. Div. 1957)
• Parties: Edward BEEDENBENDER, Plaintiff-Respondent, v. MIDTOWN PROPERTIES, Inc., Defendant, Impleaded with Stephen Messana and Kathryn Messana d/b/a The Italian Kitchen, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 276

164 N.Y.S.2d 276

4 A.D.2d 276

Edward BEEDENBENDER, Plaintiff-Respondent, v.MIDTOWN PROPERTIES, Inc., Defendant, Impleaded with Stephen Messana and Kathryn Messana d/b/a The Italian Kitchen, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 28, 1957.

John J. Cunneen, New York City, of counsel(Caverly, Diamond, Dwyer & Lawler, New York City, attorneys), for appellants.

Norman Bard, Brooklyn, of counsel(Joseph P. Kopelman and Max Jackrel, Brooklyn, with him on the brief; Jackrel & Kopelman, Brooklyn, attorneys), for respondent.

Before PECK, P. J., and BREITEL, BOTEIN, RABIN and FRANK, JJ.

BOTEIN, Justice.

At 3:30 a. m. one morning, plaintiff, a policeman, was on duty at the corner of Eighth Avenue and 46th Street.While talking to another patrolman he saw Benny Bates, the porter and night watchman of a nearby restaurant, the Italian Kitchen, motion to them.Joined by a third policeman, they spoke to Bates, who told them he had seen a prowler behind the restaurant, climbing up the fire escape in the next yard.Bates asked them to accompany him and led the way through the restaurant to the rear.There was no one in the back yard of the Italian Kitchen, but as they flashed their lights on the fire escape of the adjacent property, owned by defendantMidtown Properties, Inc., they saw a movement which they took to be that of a man.

Plaintiff walked over to the fence between the properties, which was about seven feet high and consisted of several old wooden doors that had been joined together.He attempted to open one of the doors, but it had no knob and was also obstructed by a tub laden with debris, which he could not move.As Bates stood by, watching, plaintiff climbed on some garbage cans that were in front of the fence, put his flashlight in his pocket, and straddled the top of the fence, hesitating just long enough to observe a strip of ground along the base of the fence on the other side, which blended into the darkness beyond.Letting himself down on the other side, plaintiff released his hold on the fence and reached for the flashlight in this pocket.As he did so he lost his balance, his feet went out from under him, and he toppled backwards off a narrow ledge into the areaway below.He landed on his back and spine, thus sustaining the injuries for which he sues.

Most of the back yard of the defendantMidtown Properties, Inc. opened on a subbasement some 18 to 20 feet below the level of the back yard of the Italian Kitchen.A narrow L-shaped cement walk skirted the edge of the sunken areaway, running from the one door in the fence designed to afford access from the Midtown property through the Italian Kitchen back yard to the street beyond.This walk and the 18-inch wide ledge running parallel to the fence--the ledge from which plaintiff fell--were the only parts of the Midtown back yard on the same level as the Italian Kitchen back yard.

Plaintiff brought action against both Midtown and the proprietors of the Italian Kitchen, alleging that they were negligent in maintaining the fence in a defective condition, in obstructing a required means of ingress and egress, and in maintaining a dangerous trap on the premises.After trial the jury rendered a verdict in favor of defendant Midtown but against the defendants Messana, who owned the Italian Kitchen, and the latter defendants appeal from the judgment entered thereon.

Throughout the course of this action plaintiff has placed great stress on the alleged breach by the appellants of their statutory duty to keep the door in the wooden fence between the properties free from obstructions.Plaintiff produced several witnesses to support this contention, and the court charged the jury that 'If you find that that door or means of egress or exit was obstructed by the Italian Kitchen''or any of its servants or employees you will be justified in finding that particular defendant guilty of negligence'.Appellants duly excepted to this charge.

Plaintiff sought to establish appellants' breach of a statutory duty by reliance on the Labor Law and the Administrative Code.Section 273, subd. 9, of the Labor Law imposes no obligation on appellants to keep the fence door free from obstruction, for it requires the factory building owner to provide lighted and unobstructed access directly from his fire escape to the street without going through and adjoining property.Merely because Midtown had constructed fire escapes on the rear of its building, in order to secure approval of a partial change to factory use, appellants were not required to afford it an easement of access through their property (Hoffman v. Fraad, 130 Misc. 667, 224 N.Y.S. 694, affirmed224 App.Div. 717, 229 N.Y.S. 868).

While the Administrative Code, Section C26-273.0, subd. d, par. 7, permits egress from fire escapes on the rear of buildings to the street through the yard of an adjoining building, that section explicitly provides that 'egress to an adjoining property by means of a gate or door through a fence shall be inacceptable unless the written consent of the owner of such property is obtained and filed with the superintendent'.Plaintiff produced no proof that appellants ever filed such written consent to the use of their property in order to afford access from the Midtown fire escapes to the street.Plaintiff argues that since a certificate of occupancy was issued to Midtown, there is a presumption that all the requirements of the various statutes were complied with.Certainly appellants are not bound by any presumptions attaching to a certificate of occupancy to which they were not parties.If such a presumption could arise, it would be rebutted by the fact that Midtown's architect, in a letter to the Department of Housing and Buildings, had requested issuance of the certificate of occupancy despite the absence of written consent by the Italian Kitchen to the use of its property as a passageway, on the ground that the Midtown building already had two other and independent means of egress leading directly to the street.

Since appellants were not legally obliged to give access to Midtown, and the door in the fence was not designed as a means of egress from the Italian Kitchen property, appellants did not violate Section C26-301.0 of the Administrative Code by obstructing a door they were under no obligation to provide at all.The obligations imposed by the article in which that section appears apply to the building owners, and not to the owners of adjacent premises, except where such adjacent owners are specifically mentioned.We need not consider, therefore, the question of whether the plaintiff was within the class intended to be benefitted by such statutes, as a person who was not seeking egress from the Midtown building to the street.

Appellants were not shown therefore, to have owed any statutory duty with respect to the door in the fence.Hence, the court was in error in charging that appellants had a duty to keep the fence door unobstructed.This alone would necessitate a...