Haibi v. 790 Riverside Drive Owners, Inc.

• Decision Date: 16 November 2017
• Citation: 156 A.D.3d 144,64 N.Y.S.3d 22
• Parties: Roberto HAIBI, etc., Plaintiff–Respondent, v. 790 RIVERSIDE DRIVE OWNERS, INC., individually and doing business as Riviera Cooperative, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 144

64 N.Y.S.3d 22

Roberto HAIBI, etc., Plaintiff–Respondent,

v.790 RIVERSIDE DRIVE OWNERS, INC., individually and doing business as Riviera Cooperative, et al., Defendants–Appellants.

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

Nov. 16, 2017.

Mauro Lilling Naparty, LLP, Woodbury (Gregory A. Cascino and Matthew W. Naparty of counsel), for appellants.

Rheingold Giuffra Ruffo & Plotkin LLP, New York (Jeremy A. Hellman and Thomas P. Giuffra of counsel), for respondent.

PETER TOM, J.P., DIANNE T. RENWICK, RICHARD T. ANDRIAS, ANIL C. SINGH, PETER H. MOULTON, JJ.

RENWICK, J.

Plaintiff, Roberto Haibi, brings this action as the Administrator of his father Erasmo Haibi's estate to recover damages for Erasmo's injuries from a fall on October 24, 2009, on a stairway in a residential apartment building owned by defendant 790 Riverside Drive Owners, Inc., and managed by defendant Orsid Realty Corp. The stairway connects the main and southern lobbies near an entrance to defendants' building. Plaintiff alleges that his father was injured by a fall on the lobby stairs because of, among other things, inadequate illumination.

Erasmo Haibi's granddaughter, Danette Rodriguez, who lived with her grandfather in the building at the time of his accident, did not observe his fall, but found him lying injured at the bottom of the lobby stairs. Erasmo Haibi died February 5, 2011, from a cause unrelated to his fall, before he was deposed in this action. The building's surveillance cameras, however, recorded his fall on a videotape that Rodriguez viewed on the day of the fall. Although Rodriguez orally requested a copy of the videotape from defendants, and plaintiff's attorney requested in writing that they preserve the tape, defendants destroyed it. In anticipation of trial, plaintiff moved for an adverse inference instruction to the jury, at trial, due to defendants' destruction of the tape. The motion court granted plaintiff an instruction allowing the jury to infer that the videotape would have supported Rodriguez's depiction of the stairs and of Erasmo Haibi's fall, based on Rodriguez's viewing of the tape.

In response, before the trial commenced, defendants moved for summary judgment claiming that there was no dangerous condition on their stairway that caused Erasmo Haibi's fall. Initially, the motion court granted defendants' summary judgment motion to the extent of dismissing plaintiff's claims that the stairway was unsafe due to the lack of handrails, and nonuniform treads and risers on the stairs. The court denied, however, defendants' summary judgment motion seeking a dismissal of the action, upon a finding that defendant had not eliminated issues of fact as to the adequacy of the lighting on the subject stairway and proximate cause. We now affirm.

Whether or not defendants met their prima facie burden on the issue of inadequate lighting—by submitting photographs and deposition testimony demonstrating that the subject area was illuminated by overhead light fixtures at the time of the accident—we find that plaintiff raised a triable issue of fact. Specifically, plaintiff submitted an expert's nonconclusory affidavit stating that, although the applicable 1916 Building Code of the City of New York only directed buildings to provide "adequate lighting" of all stairways (see City of NY, Code of Ordinances art 8, § 159[2] [1916] ), upon his inspection the light levels were a fraction of what was considered adequate lighting under later building codes from 1968 and 2008.

We reject defendants' contention, adopted by the dissent, that plaintiff's expert affidavit should be disregarded because he did not specify when his inspection of the area occurred, and under what conditions. While such details would be important for a visual observation, here plaintiff's expert performed an objective measurement, as compared to the witnesses' subjective observations, of the light level, which he found to be significantly lower than what was deemed "adequate lighting" under later building codes. For this reason, defendants' related argument, that because the applicable 1916 Building Code did not define the acceptable light level, there can be no claim of inadequacy, is equally unavailing. We perceive no reason why adequate lighting in 1916 would differ from adequate lighting in 1968 or 2008.

On the issue of proximate cause, we find that defendants failed to meet their burden. Proximate cause is almost invariably a factual issue (see Turturro v. City of New York, 28 N.Y.3d 469, 485, 45 N.Y.S.3d 874, 68 N.E.3d 693 [2016] ; Kriz v. Schum, 75 N.Y.2d 25, 33–34, 550 N.Y.S.2d 584, 549 N.E.2d 1155 [1989] ; Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128 [1987] ; Restatement [Second] of Torts § 433B, Comment b). Ordinarily, it is for the trier of fact to determine the issue of proximate cause (see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 [1988] ). However, the issue of proximate cause may be decided as a matter of law " ‘where only one conclusion may be drawn from the established facts' " ( id. at 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280, quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ).

The dissent contends, however, that the issue of proximate cause must be decided as matter of law in favor of defendants because "none of [the witness to the accident or who reviewed the videotape of the accident] claimed that the decedent misstepped or lost his balance due to inadequate lighting." The law, however, does not apply such a stringent requirement. To be sure, a plaintiff's inability to identify the cause of a fall is fatal to an action because a finding that the defendant's negligence proximately caused a plaintiff's injuries would be based on speculation ( Siegel v. City of New York, 86 A.D.3d 452, 928 N.Y.S.2d 1 [1st Dept.2011] ). However, this simply requires that the evidence identifies the defect or hazard itself and provides sufficient facts and circumstances from which causation may be reasonably inferred ( Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 684 N.Y.S.2d 139, 706 N.E.2d 1163 [1998] ).

The dissent cannot and does not dispute that inadequate lighting itself may constitute a dangerous condition where the inadequacy of lighting renders the appearance of premises deceptive. Such deception occurs by the illusion that two areas of the same premises are on the same level whereas, in fact, there is a change in floor level to which the available lighting does not call sufficient attention.

In addition, we find that the evidence adduced by defendants failed to eliminate all issues of fact as to whether this alleged dangerous condition on the subject stairway contributed to the decedent's fall. In this regard, the building's residential manager, Jose Aramis Fornier (Aramis), testified that he viewed the videotape of the accident and that it showed that the decedent fell while walking up the set of stairs connecting the upper and lower lobby on the ground floor of the building. Specifically, Aramis described what he observed in the videotape as follows:

"Q. When did you first watch the video after the incident?

"A. The day after the incident.

"Q. What did the video depict?

"A. Depict my tenant carrying something in his hand, takes a step up a stair, attempts to bring the other step, lose his balance and falls off."

Likewise, the decedent's granddaughter, Danette Rodriguez, testified that she viewed the videotape of the accident and it showed that the decedent fell while walking up the set of stairs connecting the upper and lower lobby on the ground floor of the building. From what Rodriguez could observe in the videotape, she estimated that the decedent was on one of the middle steps, "not on the very bottom level but not on the very top." Rodriguez described the decedent's fall as follows:

"Q. And he was walking toward the right side of the steps?

"A. Right.

"Q. And then what did you see?

"A. I saw him reach up to grab the column there and he missed it or—yeah, he missed it or he lost grip or something and he fell like towards the left side. Like he hit himself on the left side (indicating). It was very quick, the video. I saw it once, but what I think I recall is that his head hit the marble seat there, but that's what I recall. Like I said, I saw the video very quick, but I know he landed on this left side of his head (indicating)."

Defendants also presented the deposition testimony of the decedent's son, Roberto Haibi, who did not view the videotape of the incident but talked to his father about the fall, at the hospital. According to Roberto Haibi, his father told him that "he was going up the stairs and that he slipped and fell backwards." Although his father was not precise as to which one of the steps he was on before the fall, he did tell his son that he "was on his way up the steps" when he fell.

We find that such evidence, when viewed in a light most favorable to plaintiff, as the opponent of summary judgment ( Johnson v. Goldberger, 286 A.D.2d 604, 730 N.Y.S.2d 309 [1st Dept.2001] ), creates questions of fact as to whether the alleged inadequate lighting on the subject stairway was a proximate cause of the decedent's fall. Unlike the dissent's rigid analysis of proximate cause, we take into account that "[c]ircumstantial evidence or common knowledge may provide a basis from which the causal sequence may be inferred" (Prosser, Torts, § 41, at 246 [3d ed.] ). "If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists" ( Vitanza v. Growth Realties, 91 A.D.2d 917, 917, 457 N.Y.S.2d 544 [1st Dept.1983] [internal quotation marks omitted] ). In this case, the dangerous condition of the stairway and the decedent's fall thereon...