Carter v. State

• Decision Date: 17 July 2014
• Parties: Demaris CARTER, Respondent, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 1198

990 N.Y.S.2d 333

2014 N.Y. Slip Op. 05394

Demaris CARTER, Respondent,

v.STATE of New York, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 17, 2014.

Law Offices of Edward M. Eustace, White Plains (Christopher M. Yapchanyk of counsel), for appellant.

Buckley, Mendleson, Criscione & Quinn, PC, Albany (John J. Criscione of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and DEVINE, JJ.

LYNCH, J.

Appeal from an order of the Court of Claims (Hard, J.), entered July 9, 2013, which denied defendant's motion for summary judgment dismissing the claim.

Claimant contends that, on the afternoon of June 20, 2008, she was injured when she fell while descending the exterior stairs leading to the basement of the Hall of Springs (hereinafter the Hall) on her way to punch-in at the office of her employer, Aramark. Defendant owns the Hall, a building constructed between 1932 and 1933, which is located in the Saratoga State Park in the City of Saratoga Springs, Saratoga County and is on the Federal Register of Historic Places. Defendant licenses the Hall to the Saratoga Performing Arts Center, a not-for-profit corporation that operates the Hall and subleases space to others, including vendors such as Aramark. Claimant alleged that she slipped and fell as she was taking a step down from the top step, which was still wet from rain earlier in the day; she reached for a handrail to grab and stop her fall, but the handrail was not within reach, and she fell down five or six steps. It is undisputed that the handrail situated on the right side of the staircase did not begin until the third step down. Claimant filed this negligence claim alleging, among other deficiencies, that defendant failed to provide the basement stairs with an adequate handrail. After issue was joined and discovery completed, defendant moved for summary judgment dismissing the claim, arguing that it did not negligently maintain the stairs or create a defective condition and lacked notice thereof, and that it was exempt from or in compliance with any applicable building codes. The Court of Claims denied the motion, prompting defendant's appeal.

Defendant has the same duty and is subject to the same rules of liability as other landowners ( see Preston v. State of New York, 59 N.Y.2d 997, 998, 466 N.Y.S.2d 952, 453 N.E.2d 1241 [1983];Covington v. State of New York, 54 A.D.3d 1137, 1137–1138, 863 N.Y.S.2d 852 [2008] ). As such, “[t]o prevail on [its] motion, defendant was required to show that [it] maintained the premises in a reasonably safe condition and neither created nor had actual or constructive notice of any allegedly dangerous condition” ( Ennis–Short v. Ostapeck, 68 A.D.3d 1399, 1400, 890 N.Y.S.2d 215 [2009];see Tate v. Golub Props., Inc., 103 A.D.3d 1080, 1081, 960 N.Y.S.2d 260 [2013] ). Viewing the evidence most favorably to claimant, we agree that defendant did not make the requisite prima facie showing and that triable issues of fact exist and, therefore, we find that the Court of Claims correctly denied the motion ( compare Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931, 932, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2013];Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).

Contrary to its contentions, defendant did not establish as a matter of law that it maintained the staircase in a reasonably safe condition. While there was no proof that defendant had actual notice of prior falls on or complaints regarding these stairs, “constructive notice may be established by showing that the condition was apparent, visible and existed for a sufficient time prior to the accident so as to allow [the] defendant to discover and remedy the problem” ( Ennis–Short v. Ostapeck, 68 A.D.3d at 1400, 890 N.Y.S.2d 215). Considering the testimony proffered by defendant indicating that the handrail existed in this condition for an extensive period of time and that the premises were regularly inspected for safety purposes, factual questions exist as to whether defendant was on notice of the allegedly dangerous condition presented by a handrail that did not extend to the top of the stairs ( see Dufrain v. Hutchings, 112 A.D.3d 1212, 1212–1213, 977 N.Y.S.2d 484 [2013];Wilson v. Proctors Theater & Arts Ctr. & Theater of Schenectady, 223 A.D.2d 826, 828, 636 N.Y.S.2d 456 [1996];see also Pomeroy v. Gelber, 117 A.D.3d 1161, 1164, 985 N.Y.S.2d 183 [2014];Grayson v. Hall, 31 A.D.3d 606, 607, 817 N.Y.S.2d 904 [2006] ).

Although defendant concedes that, under the current State Building Code—initially adopted in 1984 ( see Vachon v. State of New York, 286 A.D.2d 528, 531, 729 N.Y.S.2d 212 [2001] )—handrails must extend to the top of a staircase, it contends that it is exempt from this requirement as a preexisting use since the handrail is an original feature of the Hall. In this regard, defendant put forth testimony that the limited records available to it regarding the Hall ¹ did not indicate that the stairs or handrail had been replaced or substantially modified in recent decades and that its employees had no recollection that such plans had been considered or approved. The proffered testimony, however, was inconsistent as to whether the handrail was an “original element” of the Hall.² Moreover, defendant's own submissions demonstrate that the handrail brackets had been replaced at some unknown time, with photographs documenting anchor holes in the wall adjacent to the current brackets. This proof was not sufficient to establish that the handrail was original to the Hall, i.e., that it had never been replaced or modified.

Even accepting, arguendo, defendant's argument that a state building code did not exist at the time that the Hall was constructed, defendant still failed to establish that the design of the handrail was safe and comported with accepted standards of construction at the time the Hall was built or thereafter ( see Lesocovich v. 180 Madison Ave. Corp., 81 N.Y.2d 982, 985, 599 N.Y.S.2d 526, 615 N.E.2d 1010 [1993];Cook v. Indian Brook Vil., Inc., 100 A.D.3d 1247, 1248, 954 N.Y.S.2d 662 [2012];McKee v. State of New York, 75 A.D.3d 893, 894, 906 N.Y.S.2d 632 [2010];compare Timmins v. Benjamin, 77 A.D.3d 1254, 1254, 910 N.Y.S.2d 584 [2010];Ennis–Short v. Ostapeck, 68 A.D.3d at 1400, 890 N.Y.S.2d 215;Reid v. Schalmont School Dist., 50 A.D.3d 1323, 1324–1325, 856 N.Y.S.2d 691 [2008] ).³ Moreover, defendant's claim that building code standards governing handrails do not apply is not dispositive of claimant's common-law negligence claim ( see Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 [1995];Patafio v. Porta–Clean of Am., 39 N.Y.2d 813, 815–816, 385 N.Y.S.2d 764, 351 N.E.2d 431 [1976];Cook v. Indian Brook Vil., Inc., 100 A.D.3d at 1248, 954 N.Y.S.2d 662;Timmins v. Benjamin, 77 A.D.3d at 1255 n. 1, 910 N.Y.S.2d 584;Wilson v. Proctors Theater & Arts Ctr. & Theater of Schenectady, 223 A.D.2d at 828–829, 636 N.Y.S.2d 456). The fact that the handrail only starts at the third step down the staircase presents a question for a factfinder to resolve as to whether this placement created a dangerous condition ( see generally Wilson v. Proctors Theater & Arts Ctr. & Theater of Schenectady, 223 A.D.2d at 828–829, 636 N.Y.S.2d 456).

Further, defendant did not meet its prima facie burden of demonstrating that the lack of a handrail extending to the top of the stairs did not cause or contribute to claimant's fall ( see Finnigan v. Lasher, 90 A.D.3d 1286, 1288, 935 N.Y.S.2d...