Lopez v. Chan

• Decision Date: 31 January 2013
• Citation: 102 A.D.3d 625,2013 N.Y. Slip Op. 00549,959 N.Y.S.2d 67
• Parties: Elvin LOPEZ, Plaintiff–Respondent, v. Elizabeth Angela CHAN, Defendant–Appellant, Kamaran Grocery, Defendant. [And a Third Party Action].
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 625
959 N.Y.S.2d 67
2013 N.Y. Slip Op. 00549

Elvin LOPEZ, Plaintiff–Respondent,
v.
Elizabeth Angela CHAN, Defendant–Appellant,
Kamaran Grocery, Defendant.
[And a Third Party Action].

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

Jan. 31, 2013.

Callan, Koster, Brady & Brennan, LLP, New York (Gregory Kalnitsky of counsel), for appellant.

Gorayeb & Associates, P.C., New York (Roy A. Kuriloff of counsel), for respondent.

ANDRIAS, J.P., SAXE, MOSKOWITZ, FREEDMAN, ABDUS–SALAAM, JJ.

[102 A.D.3d 625]Order, Supreme Court, New York County (Richard F. Braun, J.), entered March 14, 2012, which, to the extent appealed from, denied the motion of defendant landlord Elizabeth Angela Chan for summary judgment dismissing the complaint as against her, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against Elizabeth Angela Chan.

In February 2008, plaintiff slipped and fell down a stairway while lowering a hand truck to deliver cases of beer to a storage cellar below a grocery store. Plaintiff was descending a short, vaulted stairway that led down from the sidewalk into the cellar. The cellar was inaccessible from inside the store, and the only way to enter or exit it was to open two metal doors that, when closed, lay flush with the sidewalk and covered the stairway.

[959 N.Y.S.2d 68]

In August 2009, plaintiff commenced this negligence action against the defendant store and the store's out-of-possession landlord on the ground that the stairway's unsafe condition caused his accident. After discovery, the landlord moved for summary judgment dismissing the complaint as against her, [102 A.D.3d 626]arguing that the stairway was not dangerous, and that in any event she did not cause the alleged defective condition and lacked actual or constructive notice of it.

In opposition, plaintiff contended that the landlord could be held liable because the lease gave her the right to reenter the premises for needed repairs, and the stairway required repair because of “a significant structural or design defect that [was] contrary to a specific statutory safety provision” ( Johnson v. Urena Serv. Ctr., 227 A.D.2d 325, 326, 642 N.Y.S.2d 897 [1st Dept. 1996],lv. denied88 N.Y.2d 814, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [1996] ). According to plaintiff, the stairway violated the 1968 Building Code of the City of New York (Administrative Code of City of N.Y.) (the Building Code)...