Soto v Falcon Restoration L.P.
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Soto v Falcon Restoration L.P. 2012 NY Slip Op 31953(U) July 13, 2012 Supreme Court, New York County Docket Number: 116590/07 Judge: Paul Wooten 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART HON. PAUL WQQTEN PRESENT: 7 Justice EFRAIN SOTO and DELIA SOTO, I18590107 INDEX NO. 001 MOTION SEQ. NO. - agalnstFALCON RESTORATION LIMITED PARTNERSHIP, Defendant. The followlng Limited Partnership PAPER$ Notice of Motlonl Order to Show Cause Answering Affidavits - Affldavlts - Exhibits ... I, 2 - Exhibits (Memo) 3 4.6 Replying Affidavits (Reply Memo) Cross-Motion: 0yes NU MBERED NO This is a personal injury action brought by Efrain Soto (Soto) and his wife Delia Soto (collectively, plaintiffs) against Falcon Restoration Limited Partnership (defendant) to recover damages for injuries Soto allegedly sustained when he tripped and fell on the raised portion of a \ cellar hatch on the sidewalk along 120thStreet, which is parallel to the front staircase located at 400 East 120thStreet, New York, New York (the premises), Defendant now moves for summary judgment, pursuant to CPLR 3212, dismissing the complaint on the grounds that: (1) the configuration of the raised cellar door hatch is in compliance with the applicable codes and standards; and (2) Soto s trip and fall on the raised cellar door hatch was not due to a defective condition. Plaintiffs have responded in opposition to the motion, and defendant has filed a reply. The parties have completed discovery and the Note of Issue has been filed. BACKGROUND Defendant is the owner of the premises, and El Barrios Operation Fightback (El Barrios), a non-party to this action, was the not-for-profit management and development corporation that managed the premises, According to defendant, in 1992 a partnership was Page 1 of 6 [* 2] formed between defendant, The City of New York, Enterprise Community Partners, and The Department of Housing Preservation and Development (HPD) to develop, among other locations, the premises for the purpose of providing low income housing under the rules of Section 8 of the New York Housing Authority. The development of the premises, according to I defendant, included an interior gut and renovation and limited minor restoration to its facade, which included a new door and a repair of the front staircase steps. The facade of the ~ premises building exterior and its appurtenances, including the raised cellar hatch, were to remain in their original configuration. On April 19, 2007 at about 4:OO p.m., Soto purportedly tripped and fell over raised I I exterior cellar doors as he was walking on the sidewalk of 120thStreet, in front of the premises, between Pleasant Avenue and First Avenue, allegedly resulting in physical injuries. Soto was shown photographs at his deposition depicting the vicinity where the accident occurred and he identified the raised basement doors that he tripped on. He testified that as he was walking along the sidewalk on 120thStreet and when he heard someone calling out to him saying Pss, pqs , he stopped walking and turned his upper body and his right leg to look in the direction of the person calling out (Notice of Motion, Plaintiffs EBT, exhibit C at 34-35, 43-44, 53). When Soto stopped he was standing next to the basement doors that he allegedly tripped on (id. at 50). Once Soto turned back around to continue walking, his right foot hit the raised area of the cellar doors, which after that, he states, I just flew ... [and] I land[ed] right on top of the at basement door with my foot (id. 54,55). He testified that he tripped on the bottom portion of the raised cellar doors (id. at 56). Subsequently, on or about December 11, 2007 plaintiffs instituted this action asserting causes of action for negligence, violations of the New York City Administrative Code, and loss of consortium. Issue was joined on or about May 2, 2008 when defendant interposed its answer. In support of its summary judgment motion, defendant submits, infer alia, depositions of Page2of 6 [* 3] Soto and John Arenes (Mr. Arenes), the Executive Deputy Director in charge of operations for El Barrios; photographs of the accident location; its expert witness disclosure; and an affidavit of Michael J. Drerup, P.E. (Mr. Drerup), a professional engineer retained by defendant. Plaintiff submits in opposition, interalia, an affidavit of William Marletta, Ph.D., CSP (Dr. Marletta), a safety consultant, as well as Dr. Marletta s CV. Mr. Arenes testified at his deposition that he was in charge of receiving and resolving any building violations for the premises, and that there was never a violation issued regarding the exterior facade of the building, including the raised cellar hatch (Notice of Motion at 7 19; exhibit D at p. 9). Mr. Drerup opines In his affidavit that the platform front entrance staircase and cellar hatch located at the premises is not in violation of any applicable code or standard, contrary to the allegations made in plaintiffs bill of particulars or by their expert Dr. Marletta (exhibit H). Mr. Drerup further concludes, after reviewing New York City Building Code (NYCBC) Article 3 5 C26-102.1, 27-1 11, that the renovated premises did not meet any criteria to trigger any section or subsection of the New York City Building Code Article 3 (id. at 7 6, 7). Mr. Drereup asserts after a review of the 1935 qertificate of Occupancy, in conjunction with the then existing building codes during the1992 renovation project of the premises, that the raised cellar hatch configuration was designed and constructed in accordance with the then existing building codes and standards (id. at 7 20; exhibit H). Further, pursuant to 27-1 11 of the NYCBC , Mr. Drereup opines that the building was grandfathered and allowed to continue to remain in compliance with the NYCBC in existence at the time the building was constructed, and the building codes in effect after December 1968 are not applicable. Section 27-1 11 of the NYCBC states, [tlhe lawful occupancy and use of any building, including the use of any service equipment therein, existing on the effective date of this code or thereafter constructed or installed in accordance with prior code requirements, as provided in section 27-105 of article one of this subchapter may be continued unless a retroactive change Is speclflcally required by the provisions of this code. Page3of 6 [* 4] In opposition, plaintiffs aver that this motion should be denied as defendant has failed to meet its burden pursuant to CPLR 3212, as triable issues of fact exist that preclude summary judgment. Specifically, plaintiffs point to the deposition of Mr. Arenes wherein he describes the 1992 renovation of the premises, which is a five story walk-up consisting of about ten residential apartments, as a mostly interior full gut rehab (Opposition 7 22; Notice of Motion, exhibit D at 14- 15). He also testifies that the facade was sort of restored which included restoring the entranceway, the basement entrances, the stairs leading into the entrance, windows, a new entrance door and the basic look of the exterior (id. at 15-17). Plaintiffs proffer that this restoration triggered sections 27-1 18(a)2 and 27-1 153of the NYCBC, Article 3, which would require defendant to comply with the specifications of the Building Code that were in effect at the time of the accident, not the building codes in effect in 1935. Plaintiffs also maintain that no evidence was put forth by defendant that the 1992 renovations did not exceed 60% of the building s value. Further, Dr. Marletta opines in his affidavit that the raised cellar doors failed to comply with the applicable code requirements and that they represented a tripping hazard. It is the conflicting opinions of each respective expert, plaintiffs maintain, that raises a triable issuq of fact as to whether the 1992 renovation of the building triggered section 27-1 15 of the NYCBC. DISCUSSION Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez w Prospect 2 Section 27-1 18(a) of the NYCBC states [elxcept as otherwise provlded for in this section, If the alteration of a building or space therein results in a change in the occupancy group classification of the bullding under the provisions of subchapter three, then the entire building shall be made to comply with the requirements of this code. Section 27-115 of the NYCBC states, [ilf the cost of making altercations in any twleve-month perlod shall exceed sixty percent of the value of the buildlng, the entire building shall be made to comply wjth the requirements of this code, except as provided in section 27-120 of this article. Page 4 of 6 [* 5] Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361,364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [I 9851; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJl lndus., lnc., 10 NY3d 733,735 [2008]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72,81 [2003]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [I 9801; CPLR 3212 [bl) When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film C o p . , 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negn' v Stop & Shop, lnc., 65 If NY2d 625, 626 [1985]). there is any doubt as to the existence of a triable Issue, summary judgment should be denied (see Rotuba Extruders, lnc. v Ceppos, 46 NY2d 223, 231 [ I 9781). Here, "the burden is on defendantlowner as the proponent of a motion for summary judgment to make out a prima facie defense by submitting proof in admissible form eliminating any issue as to the applicability of the Code to the building in question" (Pappalado v New York Health 8 Racquet Club, 279 AD2d 134, 140 [I st Dept 20001; see Sarmiento v C & E Assoc., 40 AD3d 524 [lst Dept 20071 [burden on defendant in summary judgment to demonstrate the inapplicability of the present Administrative Code]). Upon considering the relevant factors, the Court finds that defendant i not entitled to summary judgment as a matter of law as it has s Page5of 6 [* 6] failed to establish that the 1968 Building Code does not apply, and that the raised cellar hatch was, pursuant to Section 27-1 11 of the NYCBC, grandfathered under the codes in existence at the time of the building s construction. Plaintiffs have submitted evidence indicating that significant and lengthy altercations were made to the building, resulting in the change of in the occupancy group classification, causing the 1968 code to apply. However, defendant is in a better position than plaintiffs to obtain documentation concerning the repairs and renovation, their cost and the value of the building (see Pappalardo, 279 AD2d at 140), yet defendant remains silent and does not proffer documentation, in the form of expert testimony or otherwise, which address with specificity these points. As such, defendant s motion must be denied. CONCLUSION For these reasons and upon the foregoing papers, it is, ORDERED that defendant Falcon Restoration Llmited Partnership s motion for summary judgment is denied; and it is further, ORDERED that plaintiff is directed to serve a copy of this Order, with Notice of Entry, upon defendant. This constitutes the Deck Dated: 7 .- 1 7 3 Check one: [ z 0FINAL DISPOSITION Check if approprlate: NON-FINAL DISPOSITION c DO NOT POST ] Page6of 6
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