Narainasami v. City of New York

• Docket Number: 2018-12574,Index 15788/09
• Decision Date: 09 March 2022
• Citation: Narainasami v. City of New York, 2022 NY Slip Op 1456, 2018-12574, Index 15788/09 (N.Y. Sup. Ct. Mar 09, 2022)
• Parties: Ambeeka Narainasami, etc., appellant, v. City of New York, et al., respondents, et al., defendants (and a third-party action).
• Court: New York Supreme Court

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2022 NY Slip Op 01456

Ambeeka Narainasami, etc., appellant, v. City of New York, et al., respondents, et al., defendants (and a third-party action).

No. 2018-12574, Index No. 15788/09

Supreme Court of New York, Second Department

March 9, 2022

Jacoby & Meyers LLP(Finkelstein & Partners, LLP, Newburgh NY [Michael Feldman and Andrew L. Spitz], of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Larry H. Lum and Melissa Greenberg of counsel), for respondents.

Chesney, Nicholas & Brower LLP, Syosset, NY (John F Janowski of counsel), for defendantsBrink Elevator Corp.Herk Elevator Co., Inc., and Brink Elevator Corp., doing business as Herk Elevator Co., Inc.

McNamara & Horowitz LLP, New York, NY (David Paul Horowitz, John T. McNamara, and Salvatore Lapetina of counsel), for defendantOtis Elevator Company.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Queens County(Darrell L. Gavrin, J.), entered August 23, 2018.The order, insofar as appealed from, granted that branch of the motion of the defendantsCity of New York, Queens Ballpark Company, LLC, Sterling Mets, L.P., Sterling Mets, L.P., doing business as New York Mets, and Sterling Equities, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On April 15, 2008, Antonio Narainasami(hereinafter the decedent) and several companions attended a New York Mets baseball game at Shea Stadium where they sat in the upper level.The decedent's group left during the eighth inning.Although escalators had been turned off at the end of the seventh inning and barricades had been placed to prevent spectators from walking down the escalators in accordance with the stadium's policy to have spectators exit via ramps, the decedent and his companions instead chose to exit by walking down a stopped escalator.While descending the stopped escalator, the decedent fell over the handrail to a lower escalator approximately 50 feet below and died.

The plaintiff, as administrator of the decedent's estate and individually, commenced this action against, among others, the defendantsCity of New York, Queens Ballpark Company, LLC, Sterling Mets, L.P., Sterling Mets, L.P., doing business as New York Mets, and Sterling Equities, LLC(hereinafter collectively the stadium defendants), inter alia, to recover damages for the decedent's conscious pain and suffering and for the plaintiff's expenses and derivative damages.The stadium defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them.The Supreme Court granted that branch of the motion, and the plaintiff appeals.

"Landowners generally owe a duty of care to maintain their property in a reasonably safe condition, and are liable for injuries caused by a breach of this duty"(Henry v Hamilton Equities, Inc., 34 N.Y.3d 136, 142;seeSneed v Fulton Park Four Assoc., L.P., 192 A.D.3d 1058, 1059).Where members of the public are invited onto the premises, the owner has "'a nondelegable duty to provide the public with a reasonably safe premises and a safe means of ingress and egress'"(Cox v 118 E. 60th Owners, Inc., 189 A.D.3d 1169, 1170, quotingBackiel v Citibank, 299 A.D.2d 504, 505;seeGallagher v St. Raymond's R. C. Church, 21 N.Y.2d 554, 557;see alsoBynum v Keber, 135 A.D.3d 1066, 1067).

The scope of a landowner's duty extends to maintaining its 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"(Alonzo v City of New York, 188 A.D.3d 1123, 1124[internal quotation marks omitted];seeJ.R. v City of New York, 170 A.D.3d 1211, 1212).Despite this basic duty, "there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous"(Sneed v Fulton Park Four Assoc., L.P., 192 A.D.3d at 1059;seeMasker v Smith, 188 A.D.3d 867, 868).We agree with the Appellate Division, First Department, that a stationary escalator, without more, is not inherently dangerous (seeAdamo v National R.R. Passenger Corp., 71 A.D.3d 557, 558;Schurr v Port Auth. of N.Y. & N.J., 307 A.D.2d 837, 838;see alsoRoberts v Old Navy, 134 A.D.3d 1088;Jaikran v Shoppers Jamaica, LLC, 85 A.D.3d 864, 867).

"'[A]defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation'"(Hahn v Go Go Bus Tours, Inc., 144 A.D.3d 748, 749, quotingAsh v City of New York, 109 A.D.3d 854, 855;seeMoiseyeva v New York City Hous. Auth., 175 A.D.3d 1527, 1529).Nevertheless, "even in the absence of direct evidence of causation, that the existence of a defective or dangerous condition was the proximate cause of an accident may be logically inferred based on facts and circumstantial evidence"(Rivera v Waterview Towers, Inc., 181 A.D.3d 844, 846;seeBrumm v St. Paul's Evangelical Lutheran Church, 143 A.D.3d 1224, 1227).

Here the stadium defendants proffered evidence that the escalator was in good working order at the time of the decedent's fall and complied with applicable statutes and regulations.Although the plaintiff is correct that "'the absence of a violation of a specific code or ordinance is not...