Buchholz v. Trump 767 Fifth Ave., LLC

• Citation: 5 N.Y.3d 1,831 N.E.2d 960
• Parties: DEBORAH BUCHHOLZ, Individually and as Executrix of Douglas Buchholz, Deceased, Appellant, v. TRUMP 767 FIFTH AVENUE, LLC, Respondent.
• Decision Date: 09 June 2005
• Court: New York Court of Appeals

Page 960

831 N.E.2d 960

5 N.Y.3d 1

DEBORAH BUCHHOLZ, Individually and as Executrix of Douglas Buchholz, Deceased, Appellant, v. TRUMP 767 FIFTH AVENUE, LLC, Respondent.

Court of Appeals of New York.

June 9, 2005.

Kramer, Dillof, Livingston & Moore, New York City (Matthew Gaier and Norman Bard of counsel), for appellant.

Hoey, King, Toker & Epstein, New York City (H. Leonard Toker, Harold Kenneth King, Jr., and Danielle M. Regan of counsel), for respondent.

OPINION OF THE COURT

READ, J.

The events precipitating this lawsuit took place on St. Patrick's Day, 1999. After lunching and watching the St. Patrick's Day Parade, decedent Douglas Buchholz and three coworkers returned to their employer's offices on the thirteenth floor of the full-block, 50-story General Motors tower at 767 Fifth Avenue in Manhattan. Decedent, who weighed over 200 pounds, and one of his three coworkers eventually got caught up in "play fighting." Shortly after 7:00 P.M., decedent was "pushed" and "fell through" the center panel of a three-panel bay window. He plunged to his death, landing on the roof of the building's three-story high showroom.¹

The bay window's center panel measured 37 inches wide by roughly 88 inches high, was fitted with quarter-inch-thick non-tempered bronze plate glass, and was flanked by two 12-inch-wide by 88-inch-high side panels. The base of the bay window rested atop a 24-inch-deep convector cover, which was approximately 16 inches tall.²

The General Motors tower was erected in 1968 for its namesake automotive company; defendant Trump 767 Fifth Avenue, LLC acquired the building in 1998. The building's general manager since 1979 testified that he had no knowledge of "any problem with the [tower's] window glass," or of "any incidents ... where glass popped out of windows or ... slipped out of windows." Prior to March 1999 there had been "occasional damage to glass" causing it to crack, but this was a "very, very low level of concern." The building manager was not aware of "anybody breaking a glass from falling up against it" prior to March 1999, or of any other incident in his "many years in the building where glass ... shattered" upon human impact.

When the building manager arrived at the scene of decedent's fatal accident at about 8:30 P.M., he saw shards of glass in the center window panel's frame; the side panels were undamaged. A sheetrock wall adjacent to the window was marred by "indentations" or "creases ... where it was caved in." Because the frame of the center window panel was intact and undamaged, it was not removed or repaired when the glass was later replaced.

Plaintiff Deborah Buchholz, decedent's wife, commenced this action against defendant both individually and as executrix of decedent's estate. Plaintiff alleges that defendant was negligent in its ownership and control of the premises, leading to decedent's death. More specifically, plaintiff's bills of particulars claim that defendant neglected to furnish shatterproof glass windows and a safety rail across the window's face, and failed to comply with applicable regulations, including New York City Administrative Code § 27-651.

Following joinder of issue and discovery, defendant moved for summary judgment to dismiss the complaint, arguing that there was no evidence that defendant was negligent and that section 27-651 did not apply to the window. In opposition, plaintiff submitted the affidavit of her expert, a registered architect and licensed professional engineer, who inspected the scene of the accident on April 18, 2002.

Plaintiff's expert averred that the window's "very low sill" made it "highly susceptible to accidental human contact." He opined that the window was a "similar installation[ ]" under section 27-651 of the New York City Administrative Code "because the glass panel was highly susceptible to human impact loads as are the other installations in [this] code provision," which requires outfitting those glass panels subject to it with a pushbar or grille. Accordingly,

"good and accepted engineering and building safety practices dictated that a protective barrier bar be installed between 34 to 38 inches above the floor capable of withstanding a horizontal load of 50 pounds per linear foot without contracting [sic] the glass and that the barrier be a minimum of 1-1/2 inches thick."

Plaintiff's expert opined that the failure to install this protective barrier violated section 27-651; departed from good and accepted engineering and building safety practices at the time the tower was built; was readily discoverable when defendant purchased the building and inspected the windows in 1998; and should have been remedied before decedent's accident.

Plaintiff's expert continued that the tower's "non-tempered glass was [also] hazardous because [this glass] is not resistant to horizontal human impact loads and is highly susceptible to shattering and breaking into sharp dangerous shards," and that defendant should have recognized this danger. Further, "good engineering and building safety practices dictated that all the windows with non-tempered glass should have been safeguarded with a protective bar." Plaintiff's expert concluded that decedent's death was "directly due to non-compliance with N.Y.C. Building Code Section 27-651 and accepted engineering and building code practice." Specifically, "[i]f the glass was properly tempered and/or a protective bar introduced across the window, ... this accident which resulted in decedent's death would have been avoided."

Supreme Court denied defendant's motion for summary judgment, stating that "[a]lthough ... the window could not have been confused as a door or some other means of egress," she was "unable to determine, as a matter of law, whether the placement of the window sill created a situation where a person could easily stumble, and fall through the glass pane, necessitating the protections required by section 27-651 of the Administrative Code." Moreover, plaintiff's expert had "raised an issue of fact as to whether the construction/installation of the window was a serious deviation and departure from the standard and proper practice for office buildings in the City of New York."

The Appellate Division reversed, granted defendant's motion and dismissed the complaint. The Court concluded that as a matter of law section 27-651 does not apply to "exterior windows, whatever their location or dimensions" (4 A.D.3d 178, 178, 772 N.Y.S.2d 257 [1st Dept.2004]). Further, the Court found that plaintiff's expert's testimony was conclusory and unsupported, and "since the question of the applicability of [section 27-651] is a purely legal one, the motion court should not have allowed the expert to usurp its function as the sole determiner of law" (4 A.D.3d at 179, 772 N.Y.S.2d 257 [citations omitted]). We granted plaintiff leave to appeal, and now affirm.

New York City Administrative Code § 27-643 ("Scope") sets forth the scope of subchapter 10, article 12 ("Glass Panels") of the Building Code as follows:

"The provisions of sections 27-644 through 27-648 of this article [12] shall apply to the use of glass in the exterior wall of a building and shall be limited to exterior application wherein the glass would not be subjected to any loads normal to the face of glass other than those due to wind. For applications involving human impact, the provisions of section 27-651 of this article shall apply. For other cases, the strength and mode of installation of glass shall conform to accepted industry standards."

Thus, exterior windows normally subject only to wind loads are covered by sections 27-644 through 27-648, while glass applications involving human impact are governed by section 27-651.

Section 27-651 ("Panels subject to human impact loads"), in turn, provides that,

"[g]lass in prime and storm doors, interior doors, fixed glass panels that may be mistaken for means of egress or ingress, shower doors and tub enclosures, or in similar installations wherein one or more of the following criteria apply, shall meet the requirements set forth in table 10-9, or by comparative tests shall be proven to produce equivalent performance:

"(a) openings are located in regularly occupied spaces.

"(b) lowest point of panel is less than eighteen inches above finished floor.

"(c) minimum dimension of panel...