Sussman v. MK LCP Rye LLC, Index No.: 156066/2014

• Decision Date: 24 July 2017
• Docket Number: Index No.: 156066/2014
• Citation: 2017 NY Slip Op 31557 (U)
• Court: New York Supreme Court
• Parties: ANDREW SUSSMAN, Plaintiff, v. MK LCP RYE LLC, and HILTON MANAGEMENT, LLC, Defendants.

2017 NY Slip Op 31557(U)

ANDREW SUSSMAN, Plaintiff,
v.
MK LCP RYE LLC, and HILTON MANAGEMENT, LLC, Defendants.

Index No.: 156066/2014

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

RECEIVED: July 25, 2017
July 24, 2017

NYSCEF DOC. NO. 106

DECISION/ORDER

Mot. Seq. 004

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

MEMORANDUM DECISION

In this action for personal injury, defendants, MK LCP Rye LLC and Hilton Management, LLC ("Defendants") now move pursuant to CPLR 3212 to dismiss plaintiff Andrew Sussman's ("Plaintiff") amended complaint ("Complaint").

Factual Background

Defendant MK LCP Rye, LLC is the owner of the Hilton hotel located in Rye, New York (the "Hotel"). Defendant Hilton Management, LLC manages and operates the Hotel. The parties do not contest that on May 5, 2012 Plaintiff and his now-wife, Christina Schmiedel ("Schmiedel") attended a wedding at the Hotel. Plaintiff alleges that Plaintiff and Schmiedel were descending a stairway from the third-floor landing to the second-floor landing, when Plaintiff tripped and fell over the subject stairway's handrail, falling to the first-floor landing. Plaintiff filed the Complaint, alleging, inter alia, that the subject stairway was improperly and negligently constructed and maintained and was not in compliance with the applicable laws, codes, rules, regulations, and industry standards (Compl., ¶¶22-30; Corrected Bill of Particulars, ¶9).

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Defendants' Motion

In support of their motion, Defendants argue that summary dismissal of the Complaint is warranted, as Plaintiff speculates as to the cause of his accident. Specifically, Plaintiff and Schmiedel's testimony demonstrate that Plaintiff cannot identify the cause of his fall or the exact location where his fall began. Additionally, the police investigation conducted by the Rye Brook Police Department established that Plaintiff was found lying on the first-floor landing, consistent with him having fallen over the railing, and that "no violations were found" upon investigating Plaintiff's accident (Cherkis Memorandum of Law ["MOL"], at 12). Moreover, Defendants submit the affidavit of Defendants' expert, Scott E. Derector, P.E. ("Derector") which states that there were neither structural, nor any other defective conditions affecting the subject stairway at the time of Plaintiff's accident. Further, Plaintiff fails to allege that the stairway violated a code or regulation. Additionally, Plaintiff was intoxicated and "well medicated" at the time of his accident (id. at 4).

Next, Plaintiff is unable to establish a triable issue of fact as to the existence of a dangerous condition. Specifically, Plaintiff failed to submit evidence establishing Defendants' negligence. Additionally, Defendants did not create a dangerous condition.

Even if Plaintiff had raised a question of fact as to the issue of a dangerous condition, Defendants argue that Plaintiff is unable to establish a triable issue of fact as to Defendants' notice of the alleged dangerous condition, since Plaintiff speculates as to the cause of his accident. Moreover, the configuration of the subject stairway remained the same since 1971.

Moreover, Derector's affidavit establishes that the subject stairway complied with the applicable laws, codes, rules and regulations at the time of Plaintiff's accident. Additionally,

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Plaintiff failed to allege the violation of any specific statute in the Complaint and his Corrected Bill of Particulars ("Bill of Particulars").

Plaintiff's Opposition

In opposition, Plaintiff first argues that Defendants failed to satisfy their prima facie burden of establishing that the subject stairway was maintained in a safe and reasonable manner. Specifically, Derector's affidavit is based on his observation that the handrail only complied with the minimum regulation standards. Further Derector's assessment of the subject handrail fails to address the hazard "presented by the stairway well opening" Plaintiff fell through (Schlosser MOL ¶12).

Next, Defendants' claim that Plaintiff speculates as to the cause of his accident fails, since the testimony of Plaintiff and Schmiedel establish the circumstances leading up to and the location of Plaintiff's fall.

Further, Plaintiff's experts, Brad P. Avrit ("Avrit'.') and William J. Vigilante, Jr. ("Vigilante") affirmed that Defendants' failure to install adequate guardrails in conformity with applicable codes and industry safety standards was a proximate cause of Plaintiff's injury. Specifically, the condition of the subject stairway, including the inadequate handrail, the lack of any guard rail, and the opening where Plaintiff fell through, was a dangerous condition. Moreover, Plaintiff identified the location of his fall, and the experts identified the defective condition at the subject stairway. Additionally, the caselaw cited by Defendants is inapplicable to this case.

Next, triable issues of fact exist as to the dangerous condition existing on the subject stairway, and Defendants' notice of that condition. First, the testimony of Plaintiff and Schmiedel and the affidavits of Plaintiff's experts establish a triable issue of fact as to the

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dangerous condition of the subject stairway and its causal nexus to Plaintiff's fall. Second, Defendants failed to establish that their lack of constructive notice regarding the dangerous condition of the stairway, as they failed to submit evidence establishing that Defendants' had no reason to believe that the stairway was dangerous.

Moreover, the deposition testimony of Alon Ben-Gurion ("Ben-Gurion"), the General manager at the Hotel from 2003 through 2013, and Andre Luciano ("Luciano"), a security officer employed at the Hotel from 1997 through 2013, demonstrate a triable issue of fact as to whether Defendants were on notice of the defective condition on the subject stairway. Ultimately, Plaintiff's experts opine that the subject stairway insufficiently guarded against falling, and was a dangerous condition and violated applicable codes and standards.

Defendants' Reply

In reply, Defendants' further argue that Plaintiff speculates as to the cause of his accident. Specifically, Plaintiff failed to identify the distinct step he was on when he fell or any condition that caused him to fall. Schmiedel witnessed Plaintiff in the course of his fall, but did not observe his slip from the stairway. Moreover, Plaintiff's experts failed to identify a defect at the "various steps which plaintiff thought he may have fallen from" (Cherkis Reply MOL, at 3). Additionally, Plaintiff failed to present non-speculative proof that a handrail would have prevented Plaintiff's accident. Plaintiff's claim that an adequately placed handrail would have prevented Plaintiff's accident is speculative as the "handrail was not part and parcel of the loss" of Plaintiff's balance (id.). Moreover, the caselaw cited by Plaintiff is inapposite. Further, Plaintiff's experts ignore that a misstep or loss of balance, was the only explanation presented by Plaintiff for his fall.

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Next, Plaintiff's admission that he was not utilizing the subject handrail at the time of his accident precludes the condition of the handrail as a proximate cause of Plaintiff's accident. Further, Plaintiff's expert's claims that Plaintiff's accident occurred because the subject stairway was missing a guardrail. Defendant submitted the Supplemental Affidavit of Derector, which affirms that the subject handrail "acted as a guardrail system" and conformed to all applicable codes and standards (Derector Supplemental Aff., ¶2). Moreover, Avrit inaccurately measured the subject stairs and both of Plaintiff's experts misapplied inapplicable codes. Additionally, Plaintiff's argument that Derector failed to address the substantial fall hazard presented by the stairway opening fails, since his "opinions established by review of codes that the handrail was compliant within a reasonable degree of engineering certainty" (Cherkis Reply MOL, at 14). Further, since Plaintiff was not using the subject handrail at the time of his accident, Plaintiff's attempt to grasp at it after tripping on the subject stairway cannot be aproximate cause of his accident (id. at 16).

Defendants go on argue that Plaintiff's experts failed to demonstrate a triable issue of fact, as their conclusions were based on their misapplication of the law and standards. First, the subject stairway was in compliance with the following applicable codes: Village of Rye Brook Code Section 91-1; New York State Uniform Fire Prevention and Building Code Table 1-735; and the 2010 New York State Property Maintenance Codes Sections 306.1, 305.4 and 305.4.

Further, neither of Plaintiff's experts include a certificate of conformity as required by CPLR 2309. Moreover, Plaintiff's experts' affidavits are conclusory, as they "fail to connect the conclusions to the evidentiary proof in this case" and are irrelevant to the subject handrail (Cherkis Repy MOL, at 19). Specifically, Plaintiff's experts' assertions rely on codes and standards that are not adopted in New York, and Hilton complied with those that are adopted in

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New York. Moreover, Plaintiff incorrectly argues that Defendants' duty of care went beyond "providing a safe environment in conformity with relevant building, fire and safety, construction and other codes adopted in the State of New York" (id. at 22). Additionally, Vigilante has not been properly established as an expert in this matter.

Further, Plaintiff failed to demonstrate that Defendants had notice of the alleged defective condition, since Defendants have not received complaints about the stairway since it was erected in 1971. Finally, Plaintiff opposition, which was filed after the filing of the note of issue, inappropriately amplified the claim in his Complaint alleging that Defendants violated specific laws or ordinances.

Plaintiff's Sur-Reply¹

In opposition to Defendants' argument that Plaintiffs' experts' affidavits failed...