Chafoulias v. 240 E. 55th Street Tenants Corp.

• Decision Date: 03 November 1988
• Citation: 533 N.Y.S.2d 440,141 A.D.2d 207
• Parties: Kalliope CHAFOULIAS, Plaintiff-Appellant, v. 240 E. 55TH STREET TENANTS CORP., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 440

533 N.Y.S.2d 440

141 A.D.2d 207

Kalliope CHAFOULIAS, Plaintiff-Appellant, v. 240 E. 55TH STREET TENANTS CORP., Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 3, 1988.

Harry T. Walters, of counsel (Townley & Updike, attorneys), New York City, for plaintiff-appellant.

Kenneth J. Ready, of counsel (Renny Wm. Way, attorney), for defendant-respondent.

Before KUPFERMAN, J.P., and CARRO, ASCH, WALLACH and SMITH, JJ.

SMITH, Justice.

This is an appeal from an order of the Supreme Court granting summary judgment dismissal in a personal injury case. Because the record before the IAS Court reveals the existence of material triable issues of fact, we reverse the order and reinstate the complaint.

The facts giving rise to this action occurred on March 17, 1984 at approximately 10:30 A.M. Plaintiff, Kalliope Chafoulias, 53 years of age, upon entering an apartment building owned by the defendant located at 240 East 55th Street in Manhattan, fell down two stairs in the vestibule, breaking her kneecap. Plaintiff was at the location to meet a real estate agent with whom she had an appointment to view one of the apartments. As depicted in photographs which were part of the record before the IAS court, the vestibule of the building is entered from 55th Street through two glass doors. Approximately six inches to the left upon entering the vestibule are two steps and after descending these steps, to the right are another pair of glass doors which lead into the interior lobby. The two vestibule steps serve to bridge the twelve inch difference between the street level portion of the vestibule and that portion which is level with the interior lobby. These steps are not visible from the street, as they are perpendicular to the entrance door and the view of them from the street is obscured by venetian blinds. The floor tile of the upper vestibule platform, the stairs and the first few inches of the lower platform are the same color. It does not appear that the steps have any markings in contrasting colors either on the horizontal sections or on the edges, nor are there any accompanying handrails or bannister. In addition, upon entering the vestibule from the front door, one faces a glass wall which partitions the vestibule and stairs from the lower interior lobby. A metal bar which extends horizontally straight across the middle of that portion of the glass wall may create an illusion that the walking surface is also horizontal. There was no doorman present at the time of plaintiff's fall, nor were there any notices warning entrants of the steps.

Plaintiff, in September 1985, commenced this personal injury action sounding in negligence and seeking $100,000 in damages. She alleges in her complaint and bill of particulars that the defendant carelessly and negligently maintained the vestibule steps in dangerous proximity to the front door, that the defendant knew or should have known of the defective condition, that defendant failed to warn her of this dangerous and defective condition, and that the injuries which she suffered as a result of her unexpected fall were solely due to the negligence of the defendant.

Defendant's answer denies liability and interposes as an affirmative defense that plaintiff's injuries were due to her own negligence.

At her deposition in January 1986, plaintiff testified that on the date in question she entered the building, turned left as is necessary to reach the inner set of double doors, took one step and fell down the steps. She further testified that the weather was clear and that the building's doorman was not at the door at the time, but came to her assistance promptly after the fall, saying, "A number of people have fallen here." In a portion of her deposition, apparently relied upon by the IAS court in dismissing the complaint, she also stated, "I never saw the stairs. I just opened the door and walked in, and the next thing I knew, I had fallen down these stairs."

Thereafter, in May of 1986 plaintiff's attorney served on defendant a Notice for Discovery and Inspection which included a request for any pre-accident complaint, warnings or notices of dangerous or defective conditions at the location of the accident, investigations or inspections of the location and documents reflecting other accidents at the location.

The building's superintendent, who had been employed at the location for three years prior to the accident, was deposed by plaintiff and denied any knowledge of prior accidents or complaints relating to the vestibule steps. He also testified that doormen while on duty were required to be at the front door at all times.

While plaintiff was still attempting to obtain documents from the defendant as to prior accidents at the location, defendant moved for summary judgment dismissal.

In support of the motion the defendant submitted the affidavit of an "expert" consulting engineer which asserts that, based upon his inspection, the building met New York City Building Code requirements and that there was "no defect from an engineering standpoint at the entrance to the lobby." The defendant's attorney, in an affidavit in support of the motion, points to plaintiff's testimony that "she never saw the step ..." as supporting a conclusion that the plaintiff fell because of her inattentiveness and not because of the defendant's failure to exercise reasonable care in its maintenance of the premises.

Plaintiff opposed the motion by an attorney's affidavit, annexed to which were photographs of the accident scene depicting the vestibule floor, stairs and glass doors, and portions of the depositions of the building's superintendent and of plaintiff. Plaintiff's attorney argued that facts adduced in discovery, considered by themselves, raised issues of fact as to the exercise of reasonable care by the defendant in...