Scott v. Lyceum Theatre Corp.
| Decision Date | 25 August 2022 |
| Docket Number | Index Nos. 162057/2019,595400/2020 MOTION SEQ. No. 003 |
| Citation | 2022 NY Slip Op 32899 (U) |
| Parties | ALICE SCOTT, Plaintiff, v. LYCEUM THEATRE CORPORATION, THE SHUBERT ORGANIZATION, INC, Defendant. LYCEUM THEATRE CORPORATION, THE SHUBERT ORGANIZATION, INC Plaintiff, v. BROADWAY CHILL LLC Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 83, 84, 85, 86, 87, 88, 89, 90, 91,92, 93, 94 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119 were read on this motion to/for JUDGMENT - SUMMARY.
This is an action to recover damages for personal injuries allegedly sustained by the Plaintiff on June 26, 2019, when she fell on a stairway located in the backstage the Lyceum Theatre located at 149 West 45th Street, New York, New York. The Theatre is owned by Lyceum Theatre Corporation (Lyceum), and leased to The Shubert Organization, Inc. (Shubert). Shubert enters into agreements with different production companies to operate Broadway Shows at the Lyceum Theatre, such as the one in question in this case, Broadway Chill LLC (Broadway), which produced the Broadway show called Be More Chill. Plaintiff was an employee of Broadway Chill at the time of the incident.
On June 22, 2022, Lyceum and Shubert (collectively "Defendants") moved for summary judgment dismissing the complaint and for an order against Broadway for contractual indemnification and related relief. On August 12, 2022, the motion was marked submitted and the court reserved decision.
For the reasons stated below, Defendants' motion for summary judgment as against Plaintiff is only granted to the extent of dismissing the cause of action predicated on building code violations and is otherwise denied. Defendants' motion for summary judgment on its contractual indemnification claim is also denied.
Plaintiff was in the course of her employment as a wardrobe worker on June 26, 2019, when she sustained a fall while descending the backstage stairway from the first-floor dressing rooms down to the basement level. Plaintiff was going down to the basement where there were washers and dryers. There is no elevator or any other direct access between the basement and the backstage dressing rooms other than the backstage stairway.
The backstage stairway contains winder stair treads which turn at each turn junction. The winder stair treads are wedge shaped with diminishing depth, down to nearly zero where they intersect a newell post. In addition, the stairway contains one handrail on the inside narrow side of the stairway, which handrail has a discontinuance at each turn junction, resulting in an elevation differential of the two handrails which meet at the comer newel post. The upper handrail ends at an interior newel post, and then a new lower handrail begins from the same newel post, but at a lower and more forward location. Since the only handrail is on the narrow inside portion of the stairway, anyone walking down the stairs using the handrail is guided at the turn junction to the narrowest winder step with the least depth.
The stairs have been in the same condition for at least the last 30 years.
As Plaintiff was on the turn junction and intending to step onto the first or second of the angled winder stair treads, her right foot slipped off the nosing of the stair tread, which stair tread she alleges had insufficient depth to hold her foot. Plaintiff lost her balance, and her right hand, which had just come off the upper handrail which had ended, was not yet able to grasp onto the lower handrail, which was both in a forward and lower position. Plaintiff alleges that at the turn junction, there was no accessible or safely reachable handrail.
As Plaintiff was losing her balance, she reached with her right hand to hold onto a handrail, but since the lower handrail was too far lower down, and forward to where she was, she was unable to grasp it. Plaintiff was also unable to grasp onto the upper handrail, which at that location, was behind her, and higher up. Plaintiff fell onto her buttocks and sustained injuries.
Plaintiff alleges that had there been a handrail on the left side, going down the stairway, it would have offered a much safer option to descend the stairway. Plaintiff alleges she would have used that handrail, because it would have led her to the wide side of the steps going around the turns, which have much more depth to place her feet. Plaintiff further alleges such a handrail would be continuous handrail and would have afforded her the ability to hold on to the handrail for the entire time as she walked either up or down the stairway.
The staircase where Plaintiff's accident occurred is called the Backstage Stairs. Defendants believe that the Backstage Stairway was original from 1903 but are not certain of this.
Shubert regularly maintains the Backstage Stairs, such as vacuuming, mopping and cleaning the stairs, and if there is or would be any disrepair, it would be handled by the Shubert Facilities Department. In his 25-30 years of working for Shubert, Keith Marston (Marston) inspected and went on the Backstage Stairs at the Lyceum Theatre regularly, and such inspections were done in the ordinary course of business. His inspections and walkthroughs of the Backstage Stairs would more often during the times that a show would be running at the Lyceum but would also take place during the times that no show would be running.
If there was any repair work needed to the Backstage Stairway, it would fall under Marston's job title and description of the Facilities Dept at The Shubert Organization, including any maintenance and repair of the stairs, the tread, and the handrails.
The Backstage Stairs were accessed by the Show personnel and employees and by Marston and other Shubert personnel. During the show, Be More Chill, Broadway is responsible during operation hours to keep the Backstage Stairs clear of objects that would hinder egress or ingress.
In order to prevail on a motion for summaiy judgment, the moving party must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985); Zuckerman v City of New York, 49 N.Y.2d 557 (1980). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). However, "[o]nce the movant makes the required showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial" (Dallas-Stephenson v Waisman, 39 A.D.3d 303, 306 [1st Dept 2007], citing AIvarez, 68 N.Y.2d at 324).
" [A]ll of the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 A.D.3d 535,544 [1st Dept 2008]). "On a motion for summary judgment, the court's function is issue finding, not issue determination, and any questions of credibility are best resolved by the trier of fact" (Martin v Citibank, N.A., 64 A.D.3d 477,478 [1st Dept 2009]; see also Sheehan v Gong, 2 A.D.3d 166,168 [1st Dept 2003] [], citing Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]).
Since summary judgment deprives the litigant of her day in court, it is considered a drastic remedy which should be employed only where there is no doubt as to the absence of triable issues. Andre v. Pomeroy, 35 N.Y.2d 361. The Court's role in a summary judgment motion is issue finding rather than issue resolving. Amatulli v. Delhi Construction Corp., 77 N.Y.2d 525; Cohen v. Herbal Concepts, Inc., 100 A.D.2d 175.
Defendants have established the right to Summary Judgment as to the Claim that the Staircase Violated the Building Codes Specified in the Pleadings
Plaintiff alleges the following New York Building Code and Administrative Codes were violated: §27-127; §27-128; and §27-375. These are from the 1968 NYC Administrative Code. Also alleged is Fire Code §1012 regarding handrails without reference to any more specific year or city or state code description.
The determination of whether the staircase falls under any Code provision is one for the Court. Robbins v. County of Broome, 87 N.Y.2d 831, 834 (1995). The question of whether the Administrative Code requires a staircase to have a particular type of handrail or treads and risers is one of law, not of fact. Gaston v. New York City Hous. Auth., 258 A.D.2d 220, 224 (1st Dept. 1999).
At the outset, NY Fire Code 1012 was not applicable. Both parties acknowledge this in the motion papers submitted to the court, including Plaintiffs expert.
Since these steps were access stairs, the handrail at issue was not subject to any statutory code since it is not part of any egress system.
§27-127 and §27-128 have been repealed as of 2008 and are not specific enough to be considered statutory violations §27-375 is not applicable as the subject staircase is it is an access stair case not subject to any statute. As noted by Defendant's engineer, Stan Pitera, P.E., the staircase, which is completely within the demised premises and is in the backstage area and only goes from the basement to the floors above, is an ...
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