Bonzon v City of New York
Annotate this CaseDecided on October 23, 2009
Supreme Court, New York County
Rafael Bonzon, Plaintiffs,
against
City of New York and NEW YORK CITY TRANSIT AUTHORITY, Defendants.
117277/2007
Harold B. Beeler, J.
Defendants City of New York and New York City Transit Authority
(collectively, "defendants") move for summary judgment dismissing the claim against them.
Plaintiff opposes. For the reasons that follow, defendants' motion is denied.
Plaintiff alleges that on May 9, 2007, at approximately 4:00 P.M., he approached the
entrance of the north bound 6 IRT subway on the southwest corner of East 103rd Street and
Lexington Avenue. He was on his way home from work. Generally, he used the train station on
the other side of the street, which goes downtown. On this day, he took the Bronx bound train to
visit his daughter.
A single step separates the sidewalk from the stairway leading to the platform. The
step is as low as four inches above the ground on the left side, and as high as nine inches above
the ground at the spot where plaintiff fell. Because a train had just left the station, recently
disembarked passengers were climbing up the left side of the stairway, where there was a
handrail. Plaintiff entered at the right side, and tripped over the single step. He attempted to grab
onto a handrail to prevent himself from falling, but as there was no handrail on his right side, he
was unable to do so. He fell down face first, and then rolled down the stairs. At his 50-h hearing
he testified that he tripped on the step, and that "I just felt it, my foot got caught in the step."
Two Transit Authority employees testified at examinations before trial. Carmelite
Cadet, Transit Authority's civil engineer, testified that she visited the location of plaintiff's
accident. She measured the height of the step, at the middle, and found that it was seven inches
from the ground. She did not measure the step at its right side, where plaintiff alleges he fell. She
did not prepare a report or record her findings. Cadet testified that the concrete platform is in
conformity with Transit Authority guidelines and New York State codes. However, she testified
that she did not review the guidelines prior to or subsequent to her inspection. She did not know
whether the Transit Authority guidelines included specifications regarding the minimum height
for the platform, and did not know whether there are any specifications regarding required paint
at the top of the platform. She did know that Transit Authority guidelines included no
specifications regarding handrails on concrete platforms.
Vincent Moschello, Transit Authority's Structure Maintainer, testified regarding
[*2]maintenance and repair records for the 103rd Street station.
He testified that the vertical portion, adjacent to the sidewalk, was required to be painted yellow.
He also believed the top of the landing was required to be painted. When shown the photograph
of the platform, Moschello testified that the yellow painting on the top of the step was worn, and
that it required painting. He stated that if he were doing a specific painting inspection of the
station, he would "make a defect ticket so that the painters can paint the top portion."
Transit Authority conducted a search of its own records for that location and found
no prior claims of accidents similar to plaintiff's.
Discussion
Defendants argue that there are no triable issues of fact, because plaintiff cannot
sustain a cause of action where the accident's location was maintained in conformity with Transit
Authority guidelines. Moreover, defendants argue that the motion should be dismissed because if
even there was a dangerous condition, that condition was open and obvious to plaintiff. Plaintiff
argues that there are issues of fact with respect to defendants' adherence to its own guidelines,
based on plaintiff's expert's analysis and defendant witness's inability to identify the applicable
guidelines. Plaintiff also argues that an open and obvious condition does not relieve defendants
of liability.
The dangerous condition alleged by plaintiff is based on four factors: the presence of
a single step riser on the platform leading to the subway stairs, the riser's 9" inch height at the
right side where plaintiff tripped, the faded yellow paint on the riser and on the top of the
platform, and the absence of a handrail by the riser.
Initially, the Court agrees that it is not proper to dismiss on the basis that the
allegedly defective condition was open and obvious to plaintiff. Whether or not a condition is
open and obvious is generally a question for the jury. Westbrook v. WR Activities-Cabrera Markets, 5 AD3d 69, 72, 773
NYS2d 38 (1st Dept 2008). A defect or hazard is not rendered open and obvious merely because
it is "capable of being discerned by a careful observer." Id. Additionally, plaintiff has
presented issues of fact that the condition was not open and obvious. He testified that he was
walking straight ahead, without looking down. There were many people walking up the staircase,
because a train had just departed, and therefore the busy location rendered observation less likely.
Plaintiff's expert, William Marletta, Ph.D. CSP, submitted an affidavit where he states that the
single step riser was especially difficult to recognize because of the brief span of transition and
the faded yellow paint.
Even if the allegedly dangerous condition was open and obvious as a matter of law,
that would not be sufficient to grant the motion for summary judgment, because that would
"merely negate the duty to warn of the hazard, not necessarily all duty to maintain
premises in a reasonably safe condition." Id. at 73, 773 NYS2d 38 (italics in original); see also Lawson v. Riverbay Corp., 64
AD3d 445, 446, 883 NYS2d 199, 200 (1st Dept 2009).
Although defendants have a duty to maintain the area in a reasonably safe condition,
they argue that cannot be held liable because they are compliant with Transit Authority
guidelines. Municipal entities are afforded qualified immunity as to its policy decisions where a
governmental planning body has passed judgment on the same question of risk as would
ordinarily be placed in the "inexpert" hands of the jury. Weiss v. Foote, 7 NYS2d 579.
[*3]Pemberton v. New York City Transit Authority, 304
AD2d 340 (1st Dep't 2003). However, defendants cannot earn that deference here, where they fail
to cite to any provision, in Transit Authority guidelines or otherwise, with which it purports to
comply. Moreover, defendants' witness admitted that she did not review the guidelines before or
after inspection of the accident site. When asked if she knew about specific regulations regarding
the maximum height, or specifications regarding whether the top of the platform required paint,
she testified that she did not know.
Conversely, plaintiff's expert witness Marletta determined that the area was in
violation of the guidelines, raising as issue of fact as to defendants' liability. Specifically, New
York City Transit Authority Engineering Department Guidelines ("Transit Authority
Guidelines") state that the minimum number of risers in one stair run is two, that the maximum
riser height is seven inches (minimum six inches, six and a half inches wherever feasible), and
that the riser and top of the stair must be painted yellow. The allegedly dangerous area consisted
of a single riser, measuring nine inches from the ground at the stop where plaintiff fell, and its
yellow paint appears to have faded.
Marletta also relies on alleged violations of the New York City Building Code,
specifically 27-375. However, these provisions apply only to "buildings," and the subject
stairway is not in a building.
Nevertheless, defendants incorrectly shift the burden where they argue that "it cannot
be concluded" that defendants violated the above-mentioned standards. It is defendants' burden to
establish that they have adhered to its guidelines where they seek qualified immunity based on
their compliance. Plaintiff need only present triable issues of fact, and not to prove these
violations at the summary judgment stage.
Accordingly it is hereby ORDERED that defendants' motion for summary judgment
is denied.
This constitutes the decision and order of the court.
Dated:New York, New York
October 23, 2009
ENTER:
Harold B. Beeler, JSC
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