Nipon v. Yale Club of N.Y.C., 13 Civ. 1414 (HBP)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtPITMAN, United States Magistrate Judge
PartiesALBERT NIPON, et al., Plaintiffs, v. THE YALE CLUB OF NEW YORK CITY, Defendant.
Decision Date18 November 2014
Docket Number13 Civ. 1414 (HBP)

ALBERT NIPON, et al., Plaintiffs,
v.
THE YALE CLUB OF NEW YORK CITY, Defendant.

13 Civ. 1414 (HBP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 18, 2014


OPINION AND ORDER

PITMAN, United States Magistrate Judge:

I. Introduction

Plaintiffs Albert Nipon and Pearl Nipon commenced this action against the Yale Club of New York City (the "Yale Club") to recover for injuries after Albert Nipon fell on the front step of the Yale Club (Complaint, dated March 1, 2013 (Docket Item 1) ("Compl.")). By notice of motion dated June 3, 2014 (Docket Item 18), the Yale Club moves for summary judgment, seeking dismissal of the complaint in its entirety. The parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).1

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For the following reasons, I deny defendant's motion for summary judgment in its entirety.

II. Facts

On October 18, 2011 at approximately 11:30 A.M., Albert Nipon fell as he was entering the Yale Club (Plaintiffs' Answers and Objections to Interrogatories ("Pls.' Int. Ans."),2 annexed as Ex. D to the Declaration of David Weiser, Esq., dated June 4, 2014 (Docket Item 22) ("Weiser Decl."), at 17). Mr. Nipon, who was eighty-four years old at the time, sustained serious injuries as a result of the fall (see Pls.' Int. Ans. at 17-18, annexed as Ex. D to Weiser Decl.; Albert Nipon's Medical Records, annexed as Ex. 6 to the Declaration of Martin P. Duffey, Esq., dated June 23, 2014 (Docket Item 26) ("Duffey Decl.")).

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A. The Condition of the Entrance

The entrance at which Mr. Nipon fell had a single step, about four inches high, that led to a platform and a revolving door (Deposition of Albert Nipon ("Nipon Dep."),3 annexed as Ex. H to Weiser Decl., at 58-60; Deposition of Victor Famulari ("Famulari Dep."), annexed as Ex. L to Weiser Decl., at 44-45). The step had a nosing,4 and a handrail on either side (Nipon Dep. at 74-75, annexed as Ex. H to Weiser Decl.; see also Defendant's Photographs of the Tread ("Def.'s Photos."), annexed as Ex. N to Weiser Decl.; Animated Re-enactment of Albert Nipon's Accident ("Re-enactment"), annexed as Ex. S to Weiser Decl.). The entrance also had a side awning panel that projected outward from the building and reached from the sidewalk to above the doorway (see Surveillance Tape of Albert Nipon's Accident ("Surveillance Tape"), annexed as Ex. Q to Weiser Decl.). The side awning appears to have been a piece of opaque blue canvas, with a

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transparent panel in the middle; its apparent purpose was to shield the entry from wind and precipitation (see Surveillance Tape, annexed as Ex. Q to Weiser Decl.).

The step itself was also marked, although it is not clear from the record to what extent it was marked at the time of Mr. Nipon's fall. The parties do not appear to dispute that there was a striped black and yellow piece of wood ("Marker") on the riser of the step (Defendant's Memorandum of Law,5 dated May 30, 2014 (Docket Item 24) ("Def.'s Mem."), at 5-6; Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated June 23, 2014 (Docket Item 28) ("Pls.' Mem."), at 8 n.3). The Yale Club's Chief Engineer, Stephan M. Lehman, testified that the Marker was installed in approximately 2000 (Deposition of Stephan M. Lehman ("Lehman Dep."), annexed as Ex. K to Weiser Decl., at 22), and the Yale Club's Director of Security, Raymond Caltagirone, testified at his deposition that the Marker was present on the riser at the time Mr. Nipon fell (Deposition of Raymond Caltagirone ("Caltagirone Dep."), annexed as Ex. J to Weiser Decl., at 11, 26-28). The parties do not dispute that it was not until later in 2011, after Mr. Nipon's accident, that the Marker was removed from the riser and replaced

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with unpainted granite (Lehman Dep. at 57, annexed as Ex. K to Weiser Decl.; Defendant's Photographs of the Marker, annexed as Ex. P to Weiser Decl.; Defendant's Statement of Uncontested Facts - Local Rule 56.1, dated May 14, 2014 (Docket Item 23) ("Def.'s 56.1") ¶ 25; Pls.' Mem. at 8).

The parties do dispute whether the tread of the step was painted bright yellow at the time of Mr. Nipon's fall. Defendant has submitted photographs it claims show the tread painted bright yellow (Def.'s Mem. at 5); however, the photographs are black and white, and while one is dated August 23, 2012, the balance are undated (Def.'s Photos., annexed as Ex. N to Weiser Decl.). Plaintiffs have submitted two photographs, both in color, one of which shows the step in 2012 with the tread painted bright yellow and the Marker replaced with unpainted granite; the second photograph shows the Marker intact and the tread unpainted except for yellow paint along the nosing that appears to be almost entirely worn off (Plaintiffs' Photographs of the Yale Club Step ("Pls.' Photos."), annexed as Ex. 3 to Duffey Decl.). Mr. Nipon testified at his deposition that he does not "remember any color on the [tread of the] step[]," that it was his "feeling, it wasn't painted" and that he did not know whether the Marker was present at the time of his accident (Nipon Dep. at 76, 78, 87-88, annexed as Ex. H to Weiser Decl.). A

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surveillance tape taken at the time of the accident does not show the step (Surveillance Tape, annexed as Ex. Q to Weiser Decl.).

B. Mr. Nipon's Deposition Testimony

Mr. Nipon testified that he "tripp[ed] over the step and f[ell] into the entrance to the [Yale C]lub" (Nipon Dep. at 47, annexed as Ex. H to Weiser Decl.). He "knew there was a step[, a] step up" but also did not remember if he saw the step before his fall (Nipon Dep. at 52, annexed as Ex. H to Weiser Decl.). Mr. Nipon testified that his "foot got caught on a step and [he] fell forward" and that he "[did not] know what caused [his foot] to get caught" (Nipon Dep. at 48-49, annexed as Ex. H to Weiser Decl.). Although he later stated that his foot got caught on "[t]he lip of the step," he subsequently testified that he was assuming this fact and could not state "as a fact" that his foot got caught (Nipon Dep. at 67, annexed as Ex. H to Weiser Decl.). When asked, "When you say your right foot got caught onto the step, did your right foot get entrapped into something, did your right foot just trip on the step or something else," plaintiff responded, "Well I can't say exactly, but I just tripped on the step" (Nipon Dep. at 49, annexed as Ex. H to Weiser Decl.). Mr. Nipon stated that he was "looking into . . .

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the entrance" as he was approaching the step (Nipon Dep. at 52, annexed as Ex. H to Weiser Decl.). He had never been to the Yale Club before (Nipon Dep. at 56, annexed as Ex. H to Weiser Decl.). Mr. Nipon testified that no one was exiting the revolving door as he entered (Nipon Dep. at 71-72, annexed as Ex. H to Weiser Decl.), but the video tape of the incident depicts someone exiting at the time Mr. Nipon was approaching the entrance (see Surveillance Tape, annexed as Ex. Q to Weiser Decl.).

C. Evidence of Compliance with the Building Code

Defendant has also submitted testimony from a licensed architect, Victor Famulari, who testified that the front step of the Yale Club was "not a code compliant step by today's law, but when the building was built, it is, [for] lack of a better word, grandfathered in. It's accepted" (Famulari Dep. at 22, annexed as Ex. L to Weiser Decl.). Mr. Famulari testified that the New York City Department of Buildings ("Department of Buildings") reviewed and approved renovations made in 2005 to the Yale Club entrance as being compliant with the 1968 Building Code (Famulari Dep. at 33-37, annexed as Ex. L to Weiser Decl.); see also Department of Buildings Application ("Dep't of Buildings Appl."), annexed as Ex. M to Weiser Decl.; Blueprints for the Yale Club

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Renovation ("Blueprints"), annexed as Ex. V to Weiser Decl.; Department of Buildings Letter of Completion, annexed as Ex. W to Weiser Decl.). Mr. Famulari implied that the step was governed by the 1968 Code at the time the 2005 renovations were approved by the Department of Buildings (see Famulari Dep. at 33-37, annexed as Ex. L to Weiser Decl.).6 Mr. Famulari also testified that the step had a "legal nosing" because the nosing projected between an inch and an inch and a half past the riser and that the nosing was "not a tripping hazard" (Famulari Dep. at 43-44, annexed as Ex. L to Weiser Decl.).

Oddly, the Yale Club has submitted evidence that other visitors to the Yale Club had fallen on the same step prior to Mr. Nipon's accident (Caltagirone Dep. at 47-48, 55, 87-89, 91-95, annexed as Ex. J to Weiser Decl.; see also Yale Club Incident and Accident Reports, annexed as Ex. O to Weiser Decl.). The Yale Club's purpose in submitting this evidence is unclear. In addition, the Yale Club has submitted evidence that the Department of Buildings visited the premises the day after Mr. Nipon's

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fall in response to an anonymous complaint filed in June 2011, and that the inspector determined that the step was not a code violation and "not a trip hazard[]" (Department of Buildings Response to Complaint ("Dep't of Buildings Resp."), annexed as Ex. E to Weiser Decl.).

D. Expert Opinions

Both parties obtained expert opinions. The Yale Club submitted the opinion of an engineer, who opined that the step was in compliance with the 1968 Building Code (Expert Opinion of Paul W. Dorothy ("Dorothy Op."), annexed as Ex. R to Weiser Decl.). Defendant also submitted plaintiffs' expert opinion, an opinion from a human factors expert who opined that a single shallow step is dangerous because it is lower in the field of vision and, therefore, less visible "due to increased photoreceptor spacing, crowding and distance from the focus of attention" (Expert Opinion of Marc Green, annexed as Ex. T to Weiser Decl., at 4).

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III. Analysis

A. Legal Standards

1. Summary Judgment

The standards applicable to a motion for summary judgment are well-settled and require only brief review.

Summary judgment may be
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