Lopez v Chan

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Lopez v Chan 2012 NY Slip Op 30626(U) March 12, 2012 Supreme Court, New York County Docket Number: 111742/2009 Judge: Richard F. Braun Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. - ANNED ON 311412012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY How,IIK;rrmpF.F PART 23 Index Number 11 1742/2009 INDEX NO. LOPEZ, ELVIN MOTION DATE -P=- VS MOTION SEQ.NO. PRESENT: .J.L - - Justjc e _ . CHAN, ELIZABETH ANGELA j t@ ?- I SEQUENCE NUMBER : 001 SUMMARY JUDGMENT II I 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: 0 CASE DISPOSED ...........................MOTION IS: u GRANTED ................................................ uDENIED SElTLE ORDER 0DO NOT POST ;0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] - SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 23 - - - r _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - X ELVIN LOPEZ, Index No. 1 1 1742/09 Plaintiff, -againstEI.lZABETH ANGELA CHAN and KAMARAN GROCERY, Third-Party Plaintiff, -against- F1 MA!? 1 4 2012 RICHARDBRAUN, F. J.: This is a personal injury action arising out of a fall by plaintiff on baseinelit stairs leading down from the sidewalk while delivering beer to a market at the subject premises. Defendant Elizabeth Angela Chan (defendant), thc out-of-posscssion owner, moves for summary judgment contending that the basement stairs were not dangerous, that she did not cause or create a dangerous condition, and that she did riot have actual or coiistructive notice of a dangerous condition on the stairs. A party moving for summary judgment must demonstrate his, her, or its entitlement thereto as a matter of. law, pursuant to CPLR 321 2 (b) (Smalls v AJI Indus., I w . , 10 NY3d 733,735 [2008]; Melendez v Pcrrkchesler Med. Servs., P.C., 76 AD3d 927 [l" nept ZOlO]). To defeat summary [* 3] judgment, the party opposing the motion must show that there is a matcrial question(sj offact that requires a trial (Zzickerman v C iw qf New York, 49 NY2d 557, 562 [ 19801; CitiPinancial Co (DE) v McKinnry, 27 AD3d 224, 226 [ 1 Dept200h]), A defendant who moves for summary judgment in a slip-and-fall case has the initial burdcii of making a prima facie showing that it ncither created the hazardous condition nor had actual or constructive notice of its existencc for a surficient length oftime to discover and rcniedy it (citations omitted). (JoTnachim v IS24 Church Ave., Inc., 12 Al33d 409, 410 [lst Dept 20041.) An out-ofpossession landlord is generally not liable i or a dangerous condition in leased premisses unless he, she, or it i s contractually obligated to make repairs or he, she, or it reserved in the lease a right of reentry and the dangerous condition amounts to a signilkant design or structural defect that constitutes a statutory or code safety violation (see Reyes v Morton Willicrms Associated Supermcrrkets, tnc., 50 AD3d 496, 497 [l Dept 200Sl). Defendant s expert maintains that thcrc was no violation o r the Building Code provision upon which plaintiff relies (New York Administrative Code 5 27-375[e][2] and [fl) because the stairs were a limited access stairs not subject to those provisions (cf Rum v 64th St.-Third Ave. Assoc., LLC, 61 AD3d 596, 597 [lit Dept 20091 [where thc Court held that the Building Code provisions relied upon did not apply]). Plaintiffs expert counters by asscrtiiig that the stairs wcre interior stairs subject to those Codc provisions that rcquire designated and consistcnt riser height and tread width as well as handrails, with which thc subject stairs did not comply. Interior Stair is defined by New York Administrative Codc tj 27-232 as [a] stair within a building, that serves as a required exit. b A ~Stair is defincd in New York Administrative ~ c ~ ~ stair between two floors, which does not serve as a rcquired exit. Exit is Code 4 27-232 as & a 2 [* 4] defined as [a] means of egress from the interior of a building to an open exterior space ,., Required exit is not a defined term in the Code, though required mean[s] required by the provisions ofthis code. Subchapter 6 of the Code is dedicated to required exit facilities (,see New York Adniinistralive Code 5 27-3 54), and both plaintiff and defendant discuss the applicability of provisions o l the subchapter. Defkndant had the right l o reenter the subject premiscs undcr paragraph 13 of the lease. Construction of the Code is a matter for the court ( s i x DeKosa v C ily o f N e w York, 30 hD3d 323, 326 [ l g t Dept 20061). Defendant has failed to establish as a maller of law that New York Administrative Code $ 27-375(e)(2) and (Q(I ) and (2) do not apply to the stairway here. Plaintiff has shown through his submissions including his expert s affidavit that defendant inay have failed to correct a structural violation under Adininistralive Code 5 27-375(e)(2) and (f)(l) and (2) (see Smclwz v [run, 83 AD3d 61 1,612 11 Dept20111; Nurneny v East New YorkScrv. Hank(267 AD2d 108 [lstDcpt 19991; cf Cusumuno v Ciry o j N w Y w k , I5 NY3d 319,324 [2010] [where the Court held that Administrative Code. 5 27-375 (f) did not apply because the stairway from the first floor to thc basement was not an interior stair ]; Mun.sfield v Dolcemuscolo, 34 AD3d 763,764 [ I Ft Dept 20061 [ Because the configuration and location of the stairway is not at issue, the applicability of the requirements of the Administrative Code of the City of Ncw York for interior stairs is a question of law to be resolved by the court (citations omitted). ]; DeRosa AD3d at 326 l l y tDept 20061 [where Administrative Code 27-375 17 City OJ NCWYork, 30 (9 was not applicablc to a stairway at Yankee Stadium from the field level seats to Monument Park]). Thus, therc are questions of fact that must be tried in this action. Accordingly, cxcept for an award on del:dult to dcfcndant of summaryjudgnicnt dismissing the cross claims against dcfcndant, 3 [* 5] U the motion was denied by this court's separate decision and order of March 9, 2012. Dated: New York, New York March 12,2012 @CHARD F. BRAUN, J.S.C. MAR 14 2012 4

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