Derosa v. City of New York, 8626.

• Decision Date: 27 June 2006
• Docket Number: 8626.
• Citation: 817 N.Y.S.2d 282,30 A.D.3d 323,2006 NY Slip Op 05139
• Parties: JOHN DEROSA et al., Respondents, v. CITY OF NEW YORK, Appellants.
• Court: New York Supreme Court — Appellate Division

30 A.D.3d 323

817 N.Y.S.2d 282

2006 NY Slip Op 05139

JOHN DEROSA et al., Respondents, v. CITY OF NEW YORK, Appellants.

8626.

Appellate Division of the Supreme Court of the State of New York, First Department.

June 27, 2006.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered March 15, 2005, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff John DeRosa (DeRosa) commenced this action for injuries sustained when he fell down a stairway leading to Monument Park in Yankee Stadium. Plaintiff Denise DeRosa asserted a claim for loss of services.

At his deposition, DeRosa testified that on October 3, 2001, he went to Yankee Stadium to see a game with his wife. He had been to the stadium 8 or 10 times prior to that day.

Prior to the start of the game, DeRosa went to visit Monument Park, which is located within the stadium in the area of left field. Metal stairs with handrails on both sides lead from the field level seats to Monument Park. No other people were on the stairs and Mrs. DeRosa went down the stairs first.

DeRosa testified that as he reached the second or third step, he "thought like my foot slid on something" and he fell down the stairway, landing at the bottom. Neither he nor Mrs. DeRosa noticed any substance on the stairs. DeRosa testified he reached for the left handrail, but could not grip it because it was flush against the wall. He was carrying a mug in his right hand.

Denise DeRosa testified at her deposition that she was walking down the same stairs in front of her husband, holding onto the right handrail. He fell behind her and then his body went past her on the left side of the steps as he fell all the way to the bottom of the stairs. She did not notice any wetness, liquid or debris on the stairs.

Plaintiffs' expert, Robert Schwartzberg, submitted a report stating that the stairs in question violated building code requirements for exit stairs in a number of particulars, specifically, that the treads were not level, tread width varied more than permitted by the building code, and the left handrail was inappropriately located. He also reported that the stairway was a required exit and did not meet the building code requirements for such a stairway. The verified bill of particulars claimed, inter alia, that the stairs were excessively steep, sharply inclined, and improperly constructed and installed, thus creating a hazardous condition.

Anthony Randazzo, Director of Stadium Operations since 1998, testified at his deposition that his duties included overseeing the day-to-day operations at the stadium, including Monument Park. His search of the stadium records did not disclose any record as to when the stairs were installed or by whom. He testified there were no previous complaints about the handrails, there were no maintenance or repair records for the stairs, and he was not aware of anyone else falling on the stairs. The stairs were moved after the accident so that the handrail was no longer against the wall.

The security guard who was assigned to Monument Park during most of the 2001 baseball season testified that he recalled the incident, as it was the only time someone fell down the stairs. He stated that as DeRosa walked down the steps, he thought DeRosa's knee gave out, causing him to roll down the stairs. He further testified he did not see DeRosa grab the handrail.

Defendants moved for summary judgment, arguing that they neither created nor had notice of any allegedly dangerous condition. In addition, an affidavit from defendants' expert, Jeffrey Ketchman, opined that the stairway was not a required exit, nor was it a required interior or exterior stair as defined by the building code. Rather, Ketchman stated the stairs were "special purpose stairs" which allow patrons access to Monument Park from the left field seating area, and thus were not subject to building code requirements. After measuring the riser from which DeRosa fell, Ketchman found it be within acceptable construction standards, and opined, improperly, that the stairs were not the cause of DeRosa's fall.

Plaintiffs opposed the motion, arguing that the stairway was indeed an exterior stair, as Monument Park was an "exterior court" within the confines of Yankee Stadium. Plaintiffs' expert repeated the findings of his prior report, stating that the variations in riser heights and stair widths created an unsafe condition, did not meet proper engineering standards and did not comply with building code requirements.

In reply, defendants argued, inter alia, that expert witness Schwartzberg never made specific reference to the top three steps, where DeRosa claimed he fell. In contrast, defendants' expert found those steps to be uniform and level, and hence could not have caused DeRosa's fall.

The IAS court denied the motion for summary dismissal, finding that even if a second...