Sparrock v. City of New York

• Decision Date: 25 September 1995
• Citation: 219 A.D.2d 705,631 N.Y.S.2d 769
• Parties: Philip SPARROCK, et al., Respondents, v. CITY OF NEW YORK, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 769

631 N.Y.S.2d 769

219 A.D.2d 705

Philip SPARROCK, et al., Respondents, v. CITY OF NEW YORK, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Sept. 25, 1995.

Paul A. Crotty, Corporation Counsel, New York City (Pamela Seider Dolgow and Fay Ng, of counsel), for appellants.

Sanders, Sanders & Block, P.C., Mineola (E. David Woycik, Jr., of counsel), for respondents.

Before O'BRIEN, J.P., and SANTUCCI, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants appeal from a judgment of the Supreme Court, Kings County (Jackson, J., at liability trial; Ramirez, J., at damages trial), entered September 30, 1993, which, upon separate jury verdicts as to liability and damages, found the defendants 70% at fault in the happening of the accident and is in favor of the plaintiff Philip Sparrock in the principal sum of $231,000, and in favor of the plaintiff Denise Sparrock in the principal sum of $49,000.

ORDERED that the judgment is reversed, on the law, and a new trial is granted on the issue of liability, to be followed, if necessary, by a new trial on the issue of damages; and it is further,

ORDERED that the award of costs is to abide the event of the new trial or trials; and it is further,

ORDERED that, prior to any new trial, the plaintiff Philip Sparrock shall submit to an examination by a qualified medical expert at a time and place to be set forth in a written notice by the defendants to be served upon him at least 10 days prior to such examination, or at such time and place as the parties may agree.

The plaintiffs, Philip and Denise Sparrock, brought this personal injury action against the defendants, the City of New York and the New York City Department of Parks, to recover damages, inter alia, for personal injuries suffered by Philip Sparrock as a result of a slip and fall on a stairway leading from a walkway adjacent to the Kings County Courthouse at 360 Adams Street. At the liability trial, a former Parks Department employee testified that the stairway was "part of the park" adjoining 360 Adams Street, which was maintained by the New York City Department of Parks. There is no dispute that the City owned and controlled the property on which the stairway was situated. At the liability trial, expert testimony was admitted that the structure of the stairway did not meet with good engineering practices.

It is well established that "[c]ontrol is the test which generally measures the responsibility in tort of the owner of real property for defects relating to it" (Govel v. Lio, 120 A.D.2d 840, 841, 502 N.Y.S.2d 290; see also, D'Ambrosio v. City of New York, 55 N.Y.2d 454, 450 N.Y.S.2d 149, 435 N.E.2d 366). Contrary to the defendants' contention, the plaintiffs established a prima facie case since there exists a valid line of reasoning and permissible inferences which could lead rational individuals to the conclusion reached by the jury on the basis of the evidence presented at the trial (see, Nicastro v. Park, 113 A.D.2d 129, 132, 495 N.Y.S.2d 184).

However, there must be a new trial as to liability. The trial court permitted the plaintiffs' expert to testify that the stairway violated the provisions of the New York City Building Code relating to interior and exterior stairs. The plaintiffs' expert testified that the Code he was referring to "was later than 1968. This particular code is the new one". The trial court, in its charge to the jury, read the provisions of the 1968 Building Code (see, Administrative Code of City of N.Y. former §§ C26-604.8, C26-604.9) and instructed the jury that "[i]f you find that the City violated this section, you may consider that violation as some evidence of negligence".

There was no proof as to when the stairway was constructed. Therefore, "no foundation was established for the applicability of different versions of the Code and its individual provisions" (Ross v. Manhattan Chelsea Assocs., 194 A.D.2d 332, 333, 598 N.Y.S.2d 502).

Further, the provisions in...