Pezzello v. Pierre Cong. Apartments, LLC

• Decision Date: 16 August 2017
• Docket Number: Index No.: 160023/2014
• Citation: 2017 NY Slip Op 31715 (U)
• Parties: DIANA PEZZELLO, Plaintiff, v. PIERRE CONGRESS APARTMENTS, LLC, and URBAN ASSOCIATES, LLC, Defendants.
• Court: New York Supreme Court

2017 NY Slip Op 31715(U)

DIANA PEZZELLO, Plaintiff,
v.
PIERRE CONGRESS APARTMENTS, LLC, and URBAN ASSOCIATES, LLC, Defendants.

Index No.: 160023/2014

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35

August 16, 2017

NYSCEF DOC. NO. 79

DECISION/ORDER

Mot. Seq. 002

HON. CAROL R. EDMEAD, J.S.C.:

MEMORANDUM DECISION

This is an action for personal injury. Defendants, Pierre Congress Apartments, LLC, and Urban Associated, LLC ("Defendants") now move pursuant to CPLR 3212 for summary dismissal of plaintiff, Diana Pezzello's ("Plaintiff") amended complaint ("Complaint").

Factual Background

According to the Complaint and Supplemental Bill of Particulars ("Bill of Particulars"), Plaintiff was injured when she fell while descending a stairway going from the first floor of the apartment building where she resided (the "Building") to the basement. At the time of Plaintiff's accident the Building was owned by defendant Pierre Congress Apartments, LLC and managed by defendant Urban Associates, LLC.

Plaintiff filed the Complaint, alleging, among other things, that the subject stairway was improperly and negligently constructed and maintained and was not incompliance with the applicable statutes, laws, codes, ordinances and administrative regulations (Compl., ¶¶12-13; Bill of Particulars, ¶¶3, 16). Specifically, Plaintiff alleges that the steps were not constructed in

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compliance with the Building Code (Administrative Code of City of N.Y.) ("Building Code") § 27-375(e)(2). Plaintiff further alleges that the handrail Plaintiff was holding on to at the time of her accident failed to comply with Building Code §§ 27-375(f), (f)(2) and (f)(3). Moreover, Plaintiff alleges that the subject stairway violated the Fire Code (Administrative Code of City of N.Y.) ("Fire Code") §§ 1027.1 and 1027.3. Plaintiff also alleged common law negligence claims (Compl., ¶¶11-17).

Defendants' Motion

In support of their motion to dismiss, Defendants first argue that the configuration of the subject stairway was not the cause of Plaintiff's accident, as Plaintiff concedes that she was holding on to the handrail at the time of her accident. Moreover, since the configuration of the handrail was not the cause of Plaintiff's accident, her statutory claims fail.

Further, while Plaintiff, in her Bill of Particulars, alleges that the subject steps contained "inconsistent tread and riser dimension[s]," Plaintiff's testimony fails to indicate that the tread and riser dimensions caused her accident. Additionally, Defendants submit the affidavit of their expert, Stanley Fein, P.E. ("Fein"), a professional engineer licensed in the State of New York, indicating that he inspected the subject stairway on April 28, 2015 and January 12, 2016 (Flippinger Aff., Ex. M, Fein Aff., ¶1). Fein affirmed that the subject steps were worn, which was caused by normal use. Fein also conducted coefficient of friction measurements of the subject steps, which indicated that both steps measured 0.91. Fein's affidavit affirms that coefficient measurements were taken on the front edge of the tread on the third and fourth steps where Plaintiff's feet were placed before her accident (id., ¶18). Fein further affirmed that the

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third and fourth steps were thirty-six inches wide, had riser heights of seven inches, and tread depths of ten inches (id., ¶11).

As to the handrails, Fein affirmed that there were handrails on both sides of the subject stairway (Fein Aff., ¶24). Additionally, Fein affirmed that the handrails on both sides covered the top thirteen steps, and that the handrails did not cover the bottom two steps (id.)

Moreover, Defendants argue that the Building and Fire Codes cited by Plaintiff are not applicable, since the subject stairway was not an "interior stair" under Administrative Code § 27-232. Defendants also argue that the worn edge of the subject step on which Plaintiff allegedly slipped is not an actionable defect.

As to notice, Defendants argue that they did not have notice of the alleged defective condition of the subject step, since there were no prior accidents or complaints about the condition of the subject stairway. Defendants submit the deposition testimony of Nikola Cubi ("Cubi"), the superintendent of the Building at the time of Plaintiff's accident. Cubi testified that he inspected the stairs on a daily basis for slipping hazards and to make sure they are in acceptable condition (Fippinger Aff., Ex. J-1, Deposition Trans. of Cubi, January 6, 2016). Cubi testified that the subject stairway was in good condition (id. at Ex. K-1, Deposition Trans. of Cubi, January 14, 2016).

Defendants also submitted the testimony of Miguel Escalante ("Escalante"), a porter employed at the Building (id. at L-1, Deposition Trans. of Escalante 18:12-13). Escalante testified that no one has ever fallen on the subject stairway or complained about the condition of the stairway in the twenty years he has been employed at the Building. Escalante further testified

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that immediately after Plaintiff's accident he inspected the subject stairway and found that the stairway was not slippery (id., 190:13-15).

Plaintiff's Opposition

In opposition, Plaintiff argues that the treads of the third and fourth steps and handrails located in the subject stairway were in violation of several statutory provisions. In support of her argument, Plaintiff submits the affidavit of Andrew Yarmus ("Yarmus"), a professional engineer licensed in the State of New York (Maniatis Opp., Ex. A). Yarmus indicates that the subject steps were in violation of Building Code § 27-375(e)(2), requiring that riser height and tread width be consistent in any flight of stairs from story to story. Yarmus affirms that the riser height of the third and fourth steps varied from the other steps on the stairway and varied across the width of the steps themselves. The fourth step from the bottom varies .75 inches: the riser height was 7 ½ inches toward the right side of the step looking downwards, then shortens to 7 1/8 inches, then 6 ¾ inches at the middle of the step, and 7 ½ inches on the left side of the step. He further indicated that the riser height of the third step varied by 0.75 inches: the riser height is 7 ½ inches towards the right and left sides of the step and 6 ¾ inches towards the middle of the step (id., ¶18). Yarmus further affirmed that the varying riser heights on the individual steps "created a dip and angling towards the middle of the steps," which created "uneven walking surface and a significant risk of loss of footing and balance, which is especially dangerous when descending a flight of steps" (id., ¶20).

Yarmus also indicated that the nosings of the subject steps were angled and sloped downwards by 30 degrees and 40 degrees, respectively. Additionally, Yarmus stated that

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coefficient measurements in this case are irrelevant, since Plaintiff has not alleged that she fell because of a slippery surface.

Next, Plaintiff argues that the handrails in the subject stairway violated Building Code §§ 27-375(f), (f)(2), and (f)(3), and were a dangerous condition. First, Yarmus affirmed that neither of the handrails in the subject stairway extended for the "full run of the steps," in violation of Building Code § 27-375(f), as the handrail Plaintiff was holding on to at the time of her accident terminated at the fourth step from the bottom (Yarmus Aff., ¶28). Second, the subject handrail was in violation of Building Code § 27-375(f)(2), requiring that the handrail be at least 30 inches above the nosing of the step. And third, the end of the handrail did not "return" to the wall, "prevent[ing] plaintiff from feeling that the handrail was about to terminate," in violation of Building Code § 27-375(f)(3) (id., ¶¶28-29). Further, the wear and tear of the subject steps violated the Fire Code §§ 1027.1 and 1027.3 and (Bill of Particulars ¶3).

Additionally, Plaintiff argues that Building Code § 27-375 is applicable, since the subject stairway connected the lobby of the Building to the basement. Moreover, the basement was "occupied and habitable," since it contained a laundry room, gym, and bike room for the tenants, a changing room for the Building's maintenance staff, a garbage room and shop area used by the superintendent and maintenance (Opp., ¶55). Moreover, Plaintiff notes that Defendants' expert's affidavit is silent as to whether the subject stairway constitutes "interior stairs."

Additionally, Plaintiff asserts that Defendants had notice of the worn steps, as the "extensive wear and tear" of the subject steps "took years to develop" (Opp. Aff., Ex. A, ¶35). Moreover, Cubi admits that he was "aware of and noticed the condition of the steps and the

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handrails in September 2014" and that the condition of the steps and configuration of the handrail remained the same since 2007 (id., ¶¶36-37).

Moreover, Plaintiff avers that she established that the condition of the subject treads and absence of the appropriate handrails on the subject stairway was the cause of her accident. Specifically, Plaintiff alleges that the subject steps were curved, uneven and dipped, and that as she stepped from the fourth step to the third, her ankles were "caused to slip and roll downwards off the steps," causing her to fall (Opp. Aff., ¶41).

Defendants' Reply

In reply, Defendants first argue that the sections of the Building Code cited by Plaintiff are inapplicable because Plaintiff's accident did not take place on "interior stairs." Specifically, the subject stairway does not serve as a required exit, as the stairway leads from the lobby to the basement. Moreover, Plaintiff's argument that the subject stairway is properly identified as "interior stairs" fails, since they fail to cite to supporting caselaw.

Further, the allegation that the depression in the step caused her ankle to twist causing her to fall is unsupported by her deposition testimony. Instead, Defendants argue that...