Montesinos v. Daly, 2009 NY Slip Op 30782(U) (N.Y. Sup. Ct. 4/2/2009)
| Decision Date | 02 April 2009 |
| Docket Number | No. 105868/2007,105868/2007 |
| Citation | 2009 NY Slip Op 30782 |
| Parties | LUZ MARINA MONTESINOS and ARTURO MONTESPNOS, Plaintiffs, v. WILLIAM J. DALY, TRUSTEE OF ST. PATRICK'S CATHEDRAL IN THE CITY OF NEW YORK, TRUSTEES OF ST. PATRICK'S CATHEDRAL PW THE CITY OF NEW YORK, ST. PATRICK'S CATHEDRAL, and THE ARCHDIOCESE OF NEW YORK, Defendants. |
| Court | New York Supreme Court |
In this negligence action, plaintiff Luz Marina Montesinos is an elderly parishioner who fell and injured herself walking up the exterior steps of St. Patrick's Cathedral in Manhattan on February 11,2007. Defendants St. Patrick's Cathedral, its Trustees and the Archdiocese of New York (collectively "St. Patrick's"), deny the allegations of negligence and now move for summary judgment and dismissal of the Complaint. Their motion is supported by the pleadings, an affirmation of counsel, EBT transcript excerpts, other documentary and photographic exhibits, and a memo of law. Plaintiff opposes, supported by an affirmation of counsel, affidavits of plaintiff and engineer Harlan W. Fair, EBT transcript excerpts, other documentary and photographic exhibits, and a memo of law.
Plaintiff was invited by the Archdiocese to celebrate World Marriage Day 2007 by attending a special mass at St. Patrick's on February 11, 2007. She was 91 years old at the time. The mass was organized to celebrate marriages lasting over 65 years. It is undisputed that at the appointed time and place, plaintiff, her husband and daughter were dropped off and began to walk up the exterior steps of St. Patrick's leading to the southwest entrance on East 50lh Street. Plaintiff alleges defendants' negligence caused her to fall and injure herself. She claims defendants were negligent in constructing and maintaining steps that were uneven in height, in failing to install handrails, in failing to properly advise her where to enter St. Patrick's and in not having a "greeting committee" to meet her. Plaintiff also claims liability premised on violations of the New York City Building Code of 1968 and 1938, and the Life Safety Code, also known as NFPA 101. She allegedly broke both wrists, sustained a trauma to the head and numerous oilier injuries.1
The un-rebutted evidence submitted by defendants establishes the following facts. St. Patrick's, which was built between 1858 and 1879, is a designated New York City historic landmark. The bottom riser near the location of plaintiffs fall is shorter than the second riser. The bottom riser adjoins a sloping public way with that riser starting at grade, approximately 60 feet from the fall site, and increasing in height as it gets closer to the stone wall on 50th Street. This architectural feature appears in a number of public buildings in New York. Exhs. F, G, Drotzer Affirm. There is no handrail right where plaintiff fell, but there are seven sets of handrails outside of St. Patrick's, with one being 60 feet West of the fall site, on the comer of 50th Street and 5th Avenue. There is also a handicap ramp on 51st Street. Exhs. D, F, J, K.
Plaintiffs daughter Luz Marina Montesinos-Lalli (Lalli) testified that she learned about World Marriage Day and wrote a letter to the contact person Noreen McCormick because her parents were going to be married for 72 years. Lalli's parents were invited to the special mass at St. Patrick's and the reception following it. Lalli discussed the events with McCormick or a Ms. Rizzi. She also discussed parking, her parents' good health and how they lived alone. She did not discuss where her parents should be dropped off or where they should enter St. Patrick's, and she did not ask about special assistance or handicapped access because her parents are "not handicapped" and could walk "by themselves." Exh. I, pg. 30.
Nancy Rizzi, tho Marriage Enrichment Coordinator for the Archdiocese, testified that she sent a letter to all participants of World Marriage Day with certain information, including that, Exh. M. Rizzi testified that she sent one of these letters to all the participants, and that the person designated as the contact for the participants was told they could use the handicap entrance if needed. The average age of the participants is between 95 and 100 years old. Exhs. L, Ml (Rizzi Affid.).
On the day of the event, plaintiff drove with her family to St. Patrick's. The car stopped on 50th Street in front of the lateral entrance of St. Patrick's. A sign on a nearby stone wall shows the universal sign for handicapped access and reads "ramp on 51st Street." Exh. D. Mr. Montesinos started up the stairs without his wife because Exh. H, pg. 133. He leaned on the wall most of the way up. Lalli walked up behind her father with her mother behind. There was no liquid, debris or any other obstruction on the steps. Plaintiff did not ask for help or seek out a handrail. Plaintiff fell when she went to the second step. Nobody saw her fall and plaintiff could not say why she fell, only recalling there was "something different on the floor" and "something on ...[her] shoe," and then she fell. Exh. H, pg. 51. She was wearing sunglasses and did not recall seeing a wall.
To obtain summary judgment, a movant must establish its cause of action or defense sufficiently to warrant the court, as a matter of law based on undisputed material facts, in directing judgment in its favor. CPLR 3212(b); see Owusu v. Hearst Communications, Inc., 52 A.D.3d 285 (1st Dept. 2008) (). A movant must support its cause with evidentiary proof in admissible form. Zuckerman v. New York, 49 N.Y.2d 557, 560-563 (1980). Once a movant has met the initial burden, the burden shifts to the party opposing the motion to establish, through admissible evidence, that judgment requires a trial of disputed material issues of fact. Id. at 560; CPLR. 3212(b). See also GTF Marketing Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 967-968 (1985) ().
"We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord v Swift & Muller Constr. Co., 46 NY2d 276,281-282; Fried v Bower & Gardner, 46 NY2d 765,767; Platzman v American Totalisator Co., 45 NY2d 910, 912; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 290)." Zuckerman v. New York, 49 N.Y.2d 557, 562 (1980). The adequacy or sufficiency of the opposing party's proof is not an issue until the moving party sustains its burden. Bray v. Rosas, 29 A.D.3d 422 (1st Dept. 2006). Moreover, the parties' competing contentions must be viewed "in a light most favorable to the party opposing the motion." Lakeside Constr. v. Depew & Schetter Agency, 154 A.D.2d 513, 515 (2d Dept. 1989).
A landowner "must act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Basso v. Miller, 40 N.Y.2d 233, 241 (1976). See Peralta v. Henriquez, 100 N.Y.2d 139, 144 (2003); Jang Hee Lee v. Sung Whun Oh, 3 A.D.3d 473 (2d Dept. 2004). The scope of the duty varies with the foreseeability of the potential harm. See Taglev Jakob, 97 N.Y.2d 165, 168 (2001).
There is no factual dispute as to the height of the step risers where plaintiff fell, or that there was no handrail located exactly where plaintiff chose to ascend the steps. The first step where plaintiff was located is four inches in height and the second and remaining steps are 6 `/› inches in height. Defendants argue that the lack of a handrail and the step height differential were open and obvious and did not pose an undue risk of harm, which would entitle them to summary judgment as a matter of New York law. "[A] court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion." Tagle v. Jakob, 97 N.Y.2d 165, 169 (2001). Sufficient undisputed proof of an open and obvious hazard relieves landowners of the duty to warn [Westbrook v. WR Activities-Cabrera Mkts., 5 A.DJd 69, 72 (1st Dept. 2004)], since there is no duty to warn of conditions that arc easily observable with the normal use of one's senses. De Rossi v. Golub Corp., 209 A.D.2d 911,912 (3d Dept.), appeal denied by 85 N.Y.2d 804 (1995). The court finds that defendants have met their burden, to show with undisputed evidence, that the conditions alleged by plaintiff were open and obvious. See Vinci v. Vasaturo, 8 A.3d 262,263 (2d Dept. 2004) ().
It is undisputed that the height differential here Is due to the steps' location adjacent to a sloping public way, an architectural feature existing in other public buildings in New York City, as evidenced in photographs submitted by defendant. Exh. G. The bottom riser starts at grade, then increases in height as it gets nearer to the wall on 50th Street. Exh. F. It is obvious, as the photographs show, that the...
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