Taylor v. Lands End Realty Corp.

• Decision Date: 22 March 2012
• Parties: Michael TAYLOR, Respondent, v. LANDS END REALTY CORPORATION, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02150

93 A.D.3d 1062

941 N.Y.S.2d 293

Michael TAYLOR, Respondent,

v.LANDS END REALTY CORPORATION, Appellant, et al., Defendant.

Supreme Court, Appellate Division, Third Department, New York.

March 22, 2012.

Shantz & Belkin, Latham (M. Randolph Belkin of counsel), for appellant.

Thorn, Gershon, Tymann & Bonanni, L.L.P., Lake Placid (Erin Mead of counsel), for respondent.

Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

STEIN, J.

Appeal from an order of the Supreme Court (Demarest, J.), entered December 1, 2010 in Franklin County, which, among other things, partially denied a motion by defendant Lands End Realty Corporation for summary judgment dismissing the complaint against it.

Plaintiff was injured when he allegedly fell from the third story of a building owned by defendant Lands End Realty Corporation, a limited liability company of which Bruce Shapiero is a principal. Shapiero lives in Long Island and is not actively involved in the management and operation of the building; instead, he employs a property manager to, among other things, address maintenance issues, as needed. According to plaintiff, one night, while visiting friends who resided in an apartment on the third floor of the building, he exited from an exterior door located in one of the bedrooms onto the unlit landing and attempted to sit at the top of the stairs to smoke a cigarette. In the darkness, plaintiff failed to notice that the stairs had been removed by defendant Ragip Purisic, who had been hired by Lands End and/or its property manager to make certain repairs. In fact, Purisic had temporarily removed the stairs without erecting any barricade or posting warnings. As a result, when plaintiff went to step down on the first stair tread, he fell to the ground below.

Plaintiff commenced this personal injury action against Lands End and Purisic. Lands End moved for summary judgment dismissing the complaint against it on the theory that, inasmuch as Purisic was an independent contractor, Lands End could not be held vicariously liable for Purisic's actions. Supreme Court agreed that Lands End was not liable for Purisic's actions because he was an independent contractor and found that the nondelegable duty exception to that rule did not apply. Nonetheless, Supreme Court partially denied Lands End's motion, finding that a question of fact remained as to whether the failure to provide exterior lighting could have been a proximate cause of the accident. Lands End now appeals.

As argued by the parties on appeal, the issue before us distills to whether Lands End had an independent duty to provide lighting on the exterior rear staircase of the building, regardless of any claimed defect to the stairs. ¹ Because Lands End, as the movant for summary judgment, failed to meet its burden of establishing, as a matter of law, that it had no such duty, we affirm Supreme Court's order partially denying its motion.

We begin with the well-settled principle that a landowner has a duty to maintain his or her property in a reasonably safe condition, which includes providing a safe means of ingress and egress to tenants ( see Peralta v. Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 [2003]; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976]; Gallagher v. St. Raymond's R.C. Church, 21 N.Y.2d 554, 557, 289 N.Y.S.2d 401, 236 N.E.2d 632 [1968] ). The scope of such duty is determined “ ‘in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ ” ( Basso v. Miller, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868, quoting Smith v. Arbaugh's Rest., Inc., 469 F.2d 97, 100 [D.C. Cir.1972], cert. denied 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 [1973]; accord Peralta v. Henriquez, 100 N.Y.2d at 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170). Whether a landowner has a duty and the extent thereof is for the court to determine ( see 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 288, 727 N.Y.S.2d 49, 750 N.E.2d 1097 [2001] ). The Court of Appeals has held that “[a]bsent a hazardous condition or other circumstance giving rise to an obligation to provide exterior lighting for a particular area, landowners are generally not required ‘to illuminate their property during...