Sato v Ippudo NY

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Sato v Ippudo NY 2012 NY Slip Op 31290(U) May 7, 2012 Supreme Court, New York County Docket Number: 113796/2008 Judge: Saliann Scarpulla 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. SCANNED ON 511612012 -- [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY PART Index Number : 11379612008 SATO, HlDEKl vs. IPPUDO NY SEQUENCE NUMBER : 005 - i 3 INDEX NO. MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The followlng papsm, numbered 1 to -, NoUce of MotionlOrder to Show Cauie were mad on thls motion toHor -Affldavk - Exhlbltm IWd. INo(i). IW a ) . Anrwerlng Affldavlk - Exhlblb Roplylng Affldavlts u L a(& u Upon the foregoing paperp, it I ordered that thlt motion I s s Lu 3 P Dated: I.CHECK ONE: 5\42 ..................................................................... 2. CHECK AS APPROPRIATE: .......................... 3. CHECK IF APPROPRIATE: MOTION I : S ................................................ NON-FINAL DISPOSITION CASE DISPOSED 0GRANTED 0DENIED SEllLE ORDER DO NOT POST - 0GRANTED IN PART OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] Plaintiffs, Index No. 113796/08 -against- IPPUDO NY, PAMELA EQUITIES C O W . and PAN AM EQUITIES, INC., FILED NEW YORK COUNTY CL ¬RKS OFFICE SALIANN SCARPULLA, J.: In this personal injuries action, defendants Ippudo NY, Pamela Equities Corp. and Pan Am Equities, Inc. ( defendants ) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiffs Hideki Sat0 ( Sato ) and Kadzuko Sat0 (together plaintiffs ). In the cornplaint, Sat0 alleges that he tripped and fell down a flight of stairs that led to the basement rest room area of Ippudo Restaurant, located at 65 4* Avenue, New York, New York. As a result of the fall, Sat0 allegedly suffered several fractures, including a neck fracture. It is undisputed that the stairway walls and ceiling . are painted black. The stairs have black treads, black nosings, and a black mat at the landing. Defendants argue that the complaint should be dismissed because the alleged staircase was not inherently dangerous and any defective condition in the area was not the proximate cause of plaintiffs accident. Defendants further argue that, because they 1 [* 3] received no complaints of prior similar incidents, they did not have actual or constructive notice of the alleged dangerous condition. In support of their motion, defendants submit an affidavit from a licensed professional engineer, John J. Natoli, who opines that the lighting, signs, and hand rails on the stairway are all in compliance with the Building Code. Natoli, however, does not comment at all on the black painted walls, the black ceiling, the black treads on the staircase or the black inat at the end of the staircase. In opposition to the motion, plaintiffs submit an affidavit from William Marletta Ph.D, CSP (Certified Safety Professional) who alleges that the stairway has improper lighting, an improper first riser height (more than 7-3/4 inches), a sloped or pitched landing, and inadequate signs. Marletta claims that the Ippudo Restaurant floor plan i show that the stairway is 46 inches wide, and not 42 inches wide, as measured by Natoli. According to Marletta, a stainvay of 44 inches requires a second handrail. Marletta also claims that he went on an unannounced visit to Ippudo, and that the lighting was changed (lights turned on, or re-pointed to the stairs) prior 10 his official inspection. Finally, MarIetta concludes that the black painted ceiling, walls, treads, and mat show that the stairway was in a dangerous and defective condition. In addition to submitting the Marletta affidavit, plaintiffs argue that defendants summary judgment motion should be denied because defendants have recently impleaded the designer of the restaurant. In reply, defendants argue that the staircase was not in [* 4] violation of any applicable building codes, because the building pre-dates the Building Code. Discussion Owners and lessees have a duty to maintain their property in a reasonably safe condition. Tagle v Jakob, 97 N.Y.2d 165, 168 (2001). In addition, a landowner s duty to warn of a latent, dangerous condition on his property is a natural counterpart to his duty to maintain his property in a reasonably safe condition Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636 (2004)). Here, defendants fail to show that there are no triable issues of fact with regard to whether they created a defective condition -- a totally camouflaged stairwell. In his affidavit Marletta establishes a factual issue as to whether painting the stairs, ceiling, and walls black created a dangerous and defective condition. A jury may very well find that, in that condition, the totally black stairway created a latent or dangerous condition. That the defendants created this potential trap also creates a duty on their part to assist or warn the plaintiff. Martino v Stolzman, 18 N.Y.3d 905 (2012). Marletta s affidavit also raises a triable issue of fact as to whether or not the stairs complied with pertinent regulations of the Building Code. The defendants fail to address the effect of renovating an older pre-code building s stairway, and whether the renovation must comply with the Building Code. Further, it is true that if a building was constructed in compliance with code specifications and industry standards applicable at the time of construction, the owner is under no legal duty to modify the building thereafter in the wake of changed standards. Hotaling v Ct of New York, 55 A.D.3d 396 (1st Dept iy [* 5] ZOOS), u f d 12 NY3d 862 (2009). I?lowever, defendants have failed to submit any proof to show that the staircase was ever in conformity with the standards applicable at the time the stairway was constructed. See Lievano v Browriirzg School, 265 A.D.2d 233 (1 Dept 1999). Even assuming that the Administrative Code o f the City of New York 9 27-375 requirements as to the interior finish of interior stair enclosures, riser height, handrails, landing requirements, etc., do not apply because the stairs froin where plaintiff fell did not serve as an exit, but rather as a means of walking from the first floor to the basement, liability may attach as a result of a defective design or construction. A land occupier s duty to entrants on property is a single standard under which liability is to be measured by what is reasonable care under the circumstances. Quinlan v Cecchini, 41 N.Y.2d 686 (1977). The Court of Appeals has written that it would be hard pressed to conclude that a landowner with knowledge of a condition easily alleviated by illumination (such as a curb or a step) is not required to light the area. Peralta v Henriquez, 100 N.Y.2d 139, 145 (2003). Here, the black interior stairway walls and ceiling could have been easily alleviated by illumination, and the parties dispute whether the illumination was adequate at the time of Sato s accident. 4 [* 6] Because defendants have failed to show entitlement to summary judgment dismissing plaintiffs' complaint as a matter of law, their motion for summary judgment is denied. This constitutes the decision and order of the court. Dated: New York, New York May 7,2012 ENTER: F l,L E D M .I52012 Y NEW YORK COUNTY CLERK'S OFFICE 5

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