Blaine v 304 W. 88th St. Apt. Corp.
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Blaine v 304 W. 88th St. Apt. Corp. 2012 NY Slip Op 32303(U) September 4, 2012 Supreme Court, New York County Docket Number: 113702/09 Judge: Judith J. Gische 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 91612012 [* 1] - SUPREME COURT OF THE STATIZ OF NEW YORK m W YORK COUNTY Hat&dU01TH C!,C;CHE I!. PRESENT: Jurkr Index Number : 113m212M39 BLAINE. JEFF PART 1 0 INDBK NO. VS. - 304 WEST BB STREET APARTMENT SEQUENCE NUMBER : 001 SUMMARY JUDGMENT MOTION IML NO. [* 2] SWRhNlC COURT OF THH STATE O f NW YORK E COUNW OF N W YORK: E IAS PART 10 x - r r m m.l - - - r . - - - lI- - - - rr - - - - DECIBIWORDER Index No.: 113702-09 Seq.No.: 001,002 Jeff Blaine, Plaintiff (e), -aguinnt- PRESENT: J u m J. G k h e J.S.C. 304 West 88" Street Apartment Corp., M&H,LLC and Shaira Construction Gorp., Defendant (8). Recitation, as required by CPLR 5 2219 [a] of the papers considered in the review of this (these) motion(s): Papers Numbered Motion Seq No. 1 ................ Shaira n/m (3212) w/SAB afflrm, exhs . . . . . . Blaine opp w/MS affirm, JB amd, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 05 . p g p . . . . . . . . . . . . . . . . . . 3 Shaira reply w/SAB affirm . . . . . . . . . . . . . . . . . F!.&b sm oo(J Motion Seq No. 2 N w & Q M 304W88 and M&H n/m (3212) w/CBH a f f l r m ! ! % ~ ~ ~ p F E. g. . . . . . . . . . . . . 4 j . Blaine opp w/MS affirm, RC, JB afflds, exhs . . . . . . . . . . . . . . . . .'. 5 . ............ 5 3O4W88 and M&H reply w/CBH affirm, axh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Other: Various stips of adjournment ............................................ 7 - . l - - l - - 3 - - 1 . - 1 - 1 - - - - 1 _ - Upon the fomgolng papers, the decision and o&r -I ofthe court is as follows: GISCHE J.: This is a personal injury action in which Jeff Blaine contends the defendants were negllgsnt. Issue was joined and the note of issue was flled January 6,2012. Presently there are two motions for summary judgment before the court. Since,both -Page 1 of 15- .... [* 3] motion&are timely, summary judgment relief io avalloble (Brlll v. City of New Yo*, 2 NY3d 648 [2004]). The motions am consolidated for decislon. Argumenb Blaine is 8 longtime resident of the bullding located at 304 Weat 88" Street, Mew York, New York. H lives in apartment GB, which is located on the ground floor. Blaine e claims that on June 24,2008 he slipped and fell down the full flight of outdoor stairs located at the building becauaa they were negligently maintained. Specifically, Blalne alleges that the steps were painted with a high gloss paint that rendered therm slippery when wet and that non-skid paint should have been used. Blaine was deposed about the accident. Ha testified that it occurred in the early evenlng as he was leaving the building to run an errand. Blaine usually leaves the bullding uslng a different set of stairs that are closer to his apartment ("ground floor stairs"). That day, however, Blaine decided to us8 the other set of exterior stalrs to descend from the first floor to the street ("1" floor exterior steps"). Blaine rarely used these exterior stairs because he could use interior stairs to get to the first floor when he naadad to. In fact, in the 32 years he had lived at this building, Blaine had only used the exterior stairs leading to and from the 1" floor only a "few times." Blaine testified at his EBT that on the day of the accident it had been raining all day and was still raining when he set out to do his chores. He claims that when he descended from the building and stepped onto the landing of the steps leading from the 1'' floor to the street, it was "like ice," causing him to slip and fail all the way down the stairs until h e landed in the street. Blaine stated he had never seen nor heard of anyone else slipping on the exterior steps nor had he himself complalned about them. -Page 2 of 15- [* 4] According to Blaine, he had noticed work being done on the steps in the SIX (6) month period preceding his accident. The workere had been coverlng the 1 floor ' exterior steps "over and over and over again" with a substance. He did not notice anything identifying the company performing the work, such as a company truck, or T- floor shirt. According to Blaine, the last tlme he noticed work being done on the i'' exterior steps was approximately two (2) months before hie accldent, whlch would have been April 2008. It look like they were sanding the steps and filling in holes. Blaine described all the workers as Latino. Defendant 304 West 88" Street Apartment C o p is the cooperative corporation ("coop") that owns the building and defendant M&H, LLC was, at the tlma of plaintiffa accident, the coop's propbrty manager ("property manager"). The coop and the property manager are jointly represented and now move for 8ummary judgment dismissing the compialnt and all crom claims against them. Shaira Construction Cop. was the coop's subcontractor, hired by the property manager to do repair work at the bulldlng for the coop. Shaira also move8 for summary judgment dismisoing the complaint and all cross claims against it. Shaira argues it i8 entitled to summary judgment because it did not create the dangerous condition alleged, a8 it did not paint the steps. The coop and property manager argue that they did not have notice of or create the dangerous condition alleged. They also claim that plaintiff cannot prove that a defective condition existed at the building. They contend that even If the stairs were wet and slippery because of the rain, the mere wetness and slipperinesa of the steps is not evidence of negligence on their part or of any subcontractor they hired. Furthermore, according to the coop and -Page 3 of 15- [* 5] property maneger, none of the administrative code section8 cited by plaintiff (Admin Code 55 27-372, 27-375 [h] and 27-376) apply to the facts of this case because It was an exterior, not interior, staircase. Wlth regards to Shaira's motion, a key issua is whether Shalra's employees painted the exterior first floor steps. There are two documents whlch set forth the terms of the coop's agreement with Shaira. One document, dated April 17,2008 I a two s page letter on the coop's letterhead with a flls stamp at the bottom indicating it is a proposal. This letter proposal is slgned by Balwinder Singh, Shaira's principal and Steven Heskell, who was then employed by the property manager. The letter proposal is also IdentMed in the reference section of that document as "Scopeof work for 304 West 88" Street, Exhibit C" ("Exhibit C")*Exhibit C sets forth the work to be dona, including such things as painting the faqade of the building, pressure washing the brick, pointing, etc. There are a total of 13 punch Ibt items listed. Betlow the 13 typewritten items, there appears a handwritten item numbered 14. This item is above the signature block. It states a5 follows: "14. Steps will patch and paint (sic)." Haskell, who was deposed, acknowledges that he wrote this language in. Singh who was also deposed does not remember whether the language was in the agreement when he signed it or how the contract came about being signed. He cannot rercall, for example, whether they signed the contract twether (at the game time), or separately. if the contract was signed by the patties separately, Singh does not recall whether he signed the contract first or after Haskell signed it. Singh states that he is barely literate ("Ihardly read and write" and "I have a fifth grade education from India...") and that usually he takes contracts home for his daughter to read for him. -Page 4 of 15- [* 6] When asked whether he noticed the language about patching and painting, Singh replied that it came up after the contract was signed and that he and Haskell had a mild argument about it. He told Haskell painting the, steps was not pad of what he agreed to do because It was too much work. Slngh states that Haskell told him It was in the contract. Singh testiflad that he told Haskell point blank "I'm not dolng this, that's very simple...It's not part of the work, a lot of work, I'm not doing thla." The April 17, 2008 letter proposal also contains a requirement that "[all1work to conform to the Burr Evans Engineer's plans dated September 19,2007 and Apartment Corp's Engineer will inspect ail work. See Exhibit D." Exhibit D is a report prepared by Burt A Evans, Jr., P.E., the coop's engineer ("engineer"). The report Is entltled "Front Faqade and Mansard Roofa," and contains a list of 12 items that need to be taken care of at the building. Patching and painting the 1'' floor exterior steps is not listed as one of the items that must be done. Singh was asked about what work he did at the building. He testifled that he did whatever was required by the "scope of work." He explalned that he did roof work, brickwork, parapet wail pointing, patching of loose atonework, and painting. He also painted every floor's stonework, using the type of paint recommended by the engineer which Singh identified as being Therolastic paint. He denies that Shaira's workers painted the top of the steps, however, because "this paint we're using, that's not the paint that people walk on the riser." Although he does not know who palnted the steps, Slngh stated that Shaira only repairs atairs and the work he did for the coop was some minor patch, but nothing on the surface of the atepa where people walk on. According to Singh, Shaira Is not in the bUdn088 of painting steps and Shaira has never painted -Page 6 of 15- [* 7] steps before, regardleas of whether they are interior or exterior steps. Singh teatifid he has no idea what kind of paint would need to be ueed to paint the steps at Issue. Although Singh could not locate the receipt for the paint he bought for use at the building, he testifled that only two color paints were uwd by Shaira: the Thsrolastic paint used for all the other outside work and black paint for the handrails. He telatlfled that Shaira completed all work at the buildlng in 2008 and did not do any work at the building thereafter. Shaira provides an involea dated August 24, 2008 indicating work was completed and seeking payment, He also provides 8 second bill dated October 13, 2008 Indicating the balance due of $55,500. Haskeli testified that "he did not know" whether Shaira actually painted the steps, mr could he Identify anyone else who mlght know whether Shalra had done the work. He does not recall noticing whether the steps had been repainted. When asked whether Shaira did all the work it was hired to do, Haskell responded S h a h did not replace the missing flue breeching section and cap, 88 Exhibit C to the contract required Shaira to do. Haakall did not know why S h a h skipped over doing that work. Haskell ala0 testified that the coop might have withheld payment to Shaira because it was either unhappy with his work or It was incomplete. Haskell does not know what happened with the project because the coop changed property managers. Blaine apposes each of the motions before the court. He states that had Shah falied to paint the steps, as the contract provides, Haskeil would have noticed this ornlssion because he regularly visited the bullding at least once a month and he would have done something about it. Alternatively, Blaine argues that even if S h a h dld not paint the steps, 8omeone -Page 0 of 15- [* 8] else did and they were negligent in doing the Job. Thus, according to Blaine, regardless of whether it was Shaira or another contractor that painted the steps with the wrong type of paint, the coop is not absolved of liability becauae it is vicariously liable for the negligence of its independent contractor and the work was inherently dangerous. Blaine claims that deepite notice of the dsfectivsldangerous condition alleged and having ample tlme to fix it, the coop failed to take any action. On the issue of notice, the coop relies on the testimony of Haskell who testified that Shaira er work commenced in or about April 2008 and sometime in July 2008, the board met to discuss the patching and painting of the steps. The meeting was held with the coop s architect and the issue of the type of paint to be used was raised. The coop told the the archttect to research this issue and coordinate the work. According to Blalne, this raims triable issues about whether the coop knew special paint had to be used on the step8 Blaine also relies on the sworn affldavlt of Richard Casado who states that he is a building manager and manages a number of buildings near the subjsct building, but not 304 West 88th Street. Casado states that he was hired by Myles Share, president of the coop board, to paint the building s interior hallways and perform other work. Casado states that it is his practice to paint ateps with textured pain having a non-skid quality... He states that he is familiar with Blaine because he seems him in the neighborhood. He noticed that Blaine was limping and asked Blaine what had happened. According to Caoado, 2-3weeks prior to Blalne ar accident ha: w a r n e d Myles [Share] that the steps were) slippery because they had not used the proper palnt. In fact, I had seen the painters painting the 304 West 88 Street steps and, upon Inspectlon, concluded that they were not using non-skid paint, a paint with which I am thoroughly -Page 7 of 15- [* 9] familiar. The, paint that these workers had used to paint the eteps -8 a hlghly polished, high gloss paint which becomes alippery when wet. Myla8 did not soem to be interested and I dropped the subject. Blaine provides the sworn affldavtt of Willlam Q. Brothem, an architect, who opines that sections of the administrative code were violated. He states that Admin Code 5 27-375, titled "Interior Stairs" applies, although these wore exterior stairs and that Admin Code Q 27-370 titled "Exterior Stairs" which provides that exterior used as exits in lieu of Interlor stairs also applies because there Is a requirement that "they comply with all of the requirements of interior staira..." including that treads and landings "shall be built of or eurfaced with nonskid materials." Brothers state8 that painting the stairs and treads with a paint that does not contain nonakid materials "creates a significant slipping hazard and violates the New York City Adminiatrativa Code 55 27375 and 27-376. Furthermore, the industry standard for painting outdoor stairs requires that the paint used be of 8 nonskid material." In reply, the coop and property manager point out that the architect never did a site inspection, he does not state that the paint used on the stairs wa8, in fact, the wrong kind of paint, or that the steps were maintained in violation of the Administrative Code sections clted by plaintiff, nor does he opine what kind of paint should have been used, Addressing Casado's affidavit, the coop and property manager reply that It I a s "needless distraction" because Casado dld not fall, despite numerous vlsits to the, building, and he states the atop23 are slippery because they used the wrong paint. The defendants contend Blaine's claim is not that the steps are inherently slippery, but that they become slippery when wet. -Page 8 of 15- [* 10] Di8uussion A movant seeking summery judgment in its favor must make 8 prima facia showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the caw (Wlnwad v, W Y o r k m., NY2d 851, 853[1985]). The evidenthry proof tendered, however, must be In 64 admissible form (Frlmds of Animals v, Aeaoc. Fur,- 46 NY2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonetrate the existence of EI triable issue of fact Horn., 08 NY2d 320,324 [1Q W ; &ekeman v. CiW of New Y u k , 4 9 N.Y.2d 557 [1980]). In deciding the motion, the court must draw all reasonable inferences In favor of the nonmoving party and deny summary judgment If there is any doubt as to the existence of a material issue of fact (Dauman CZlaalays. Ine, v m168 AD2d 204,205 [l" lOSO] Iv , Dept dismissed 77 NY2d 939 [991I): -era. I Ine. v C , 46 NY2d 223,231 [ l Q781).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 &gri v Stop 8 ShoD. InG., 66 NY2d 625,626 [lSSS]). A landowner is under a duty to maintain ita property in a reasonably safe condition under existing circumstances, which includes the likelihood of injury to a third party Pmrez v, Bronx Park S o u,285 AD2d 402 [I" Dept 2001J Iv den 97 NY2d 610 [2002]). To prevail on their motions for summary judgment, the defendants must prove no dangerous condition existed (McKee v. State, 76 A.D.3d 893 [3d Dept 2010]), or if it did exist, that they did not create it or have a sufficient opportunity, within the exercise of reasonable care, to remedy the situation (see Gordon v, Amerim Mua. of Nat. W, -Page 0 of 15- [* 11] 67 NY2d 836 [1986]; Lewis v. Wletr- Tranan. Autk, 90 AD2d 248 [le84 8Fd 04 NY2d 670 [1084]; see , 223 A.D.2d 688,889 [lo961affd 88 N.Y.2d 955 [l9Q6];Dombrower v. -ria Corp., 290 AD2d 353 [l" Dap't 20021). To defeat the motion, plaintiff must (once the burden shifts to her) raise a triable issue of fact a8 to whether defendants created the condition or had actual or constructive, notice of it. Shalra has established, through the testlmony of Slngh, Its prlncipal and a person with knowledge of the facts, that It did not paint the tops of the steps leading from the 1" floor to the street, despite the handwritten provision in the April 17,2008 proposal that Shaira would "patch and paint" the steps. Haskell could not recall whether S h a h painted the tops of the steps, but did recall that in 2009, after Shaira had completed his work, this was the subject of a meeting with the coop's architect. Blaine's argument, that Haskell would have noticed if S h a h had not painted the steps and done something about it, is rank speculation and a shadowy semblance of an Issue that cannot defeat a motion for summary judgment where, as here, the movant meets Is initial burden (SJ Cwelin v, Globe, 34 NY2d 338 [1974]). Having proved that it did t not create the dangerous condition alleged, Shaira is entitled to summary judgment dismissing the complaint and cross claims against it because there are no triable issues of fact regarding its negligenm. Shaira's motlon is, therefore, granted and all elalms against it are dllsmlssed. Turning to the coop and property manager's motion, they have established that they did not have actual or constructive notice of a dangerous condition. Before Blaine's accident, no one had slipped and fallen on the 1" floor steps leading to the -Page 10 of 1 5 [* 12] street, nor had they received any complaints about a dangerous condition on those steps. They have also established that neither the coop or ita property manager painted the steps. The coop and property manager have also established that Adrnin Code 9 27-375 [h] I inapplicable to the facta of this case,88 they are alleged by s plaintiff, because that code section pertains to "Interior Stairs," but the ataira where Blaine's accident occurred were exterior stairs. Admin Code Q 27-376 applies to Exterior Stairs, but only when they are being "used as exits in lieu of Interior stairs." The issue of whether exterior stairs are being used as exits In lieu of interior stairs preeents an issue of law for the court to decided (Gaston v, New-o Y Author&y, 258 A.D.2d 220 [la 1SQSJ).Typically such stairs have a roof and run Dept along the walls, like those seen at many theaters (-ton v. New York Citv Housim &&horttv, supra). The steps at issue do not match these requirements and are, therefore, not exterior stairs used as exit8 in lieu of interior staim. Blaine ha8 apparently abandoned his claim based upon alleged violations of other administrative code sectione, includlng Adrnin Code QQ 27-372, 27-375[fJ[2], 27-37S[e][ 11 and 27-375[a][2]. These sections are, in any event, inapplkabie to the facts of this case, as plaintiff asserts them to be, In an effort to raiae a triable iaaua of fact, Blaine provides the erworn affidavit of his expert witness, Brothers. Brother has not provided a copy of his curriculum vitae. There is no atatement by him that he did a $its inspection or examined photographs of the 1'' floor stairs. Thus, plaintiff has not made an initial showing that Brothers qualifies as an expert. Leaving that issue aside, Brotheta broadly states that "palnting stairs and treads with a paint that does not contain nonskid materials creates a significant slipping -Page 11 of 15- [* 13] hazard" and violates Admin Code 55 27-375[h] and 27-376. Having decided (supra) that these code sections are inoppllcable, and having falied to establish that any other code section obligates the coop to use a special type of paint on the Oxtwior steps, Brothers' oplnion has no merit and fails to raise a factual dispute that muot be trled. Casado's affldavlt I that s buildings. uses non-skid palnt when palntsl stair8 at other He states that he noticed non-skld paint was being used by worken who were painting the 1" floor steps and that he warned Myles Share, a board member, that the steps were sllppery. Ceaado does not explaln how he knew the steps were slippery. There is no statement by him that he stepped on thorn himsetf and slipped. Rather, his claim is that the steps were slippery becauae the workers used different paint than he uses and he uses the right kind of paint. Casado is not, however, offered by plaintiff as an expert, but 88 a fact witness. Assuming the affidavit is also being offered on the issue of notice, Casedo d;d not warn Share that the steps were slippery when wet, but that the wrong palnt was belng used. The leap In his affidavit Is that Blaine slipped on the wet steps because the wrong palnt was used. This and other statements by him are simply expresslone of hie personal oplnion and/or preferences for a certain kind of paint. They do not prove that the coop/property manager did not follow a generally accepted, industry-wide standard in exiatence st the time of Blaine8 accident (Hotalinn v, Citv of New York, 55 A.D.3d 390 [I" Dapt. 20081). Cesado's affidavit is ineffective against the motion by the coop and property manager for summary judgment because it does not raiae a material issue o fact. f Blaine makes no claim that the steps he fall on were defective. Hie claim is that "[the] landing was wet and slippery and caused me to fall." The Amended Bill of -Page 12 of 1 5 [* 14] Particulars states that the steps were not properly painted, defendant8 failed to use non-skid paint and It wa8 negllgent for defendants to have "steps that were particularly hazardous when wet." Having failed to prove that there ia m y code requiring the steps to be painted with paint of a particular type, or that the cooplpropsrty manager did not follow a generally accepted, Industry-wide standard in existence at the time of his accident, the remaining issue ia whether Blaine has raiered any other factual issues to support a claim for common law negligence. One argument asserted by Blaine Is that the steps ware "too smooth" and they should not have been slippery when wet. Blaine testifled it had been raining ail day and was still raining when he, set out to take care of his chores. Thus, the water on the landing and steps was the result of an ongoing condition, not an unattended to pooling of water or due to an ongoing problem (compare, -to v. C & F A s s- , 2006 WL 6103160 [Sup Ct., N.Y. Co. 20061 n.0.r.; see also, Connr v, Avelllno, 287 AD2d 478 [2"dDept 20011). "The mere fact that the exposed stainvay was wet from the rain I s Insufficient to establish a dangerous condition." (Gomw v. David W k i n R e m a Dmlaement Fund Co.. Inc, 86 AD3d 1112,1113 [2" Dapt 20111). This argument is, therefore, unavailing. Another argument is that the coop and property manager are vicariously liable for the negligence by one of their independent contractors, even if it was not Shaira who painted the steps. Not only is there no proof that the steps were negligently maintained, it is well established law that vicarious llablllty will not attach to a party who engages an independent contractor, unless the employer interferes with and assumes control over the work, or the work is Inherently dangerous (see, Whitaker v, N o r m , 75 -Page 13 of 15- [* 15] N.Y.2d 778 [1888]). The painting of steps in not inherently danqeroua work ( T a m v, y V i A d n m 270 AD2d 479 [2 Dapt 20001; m h e r v. Battaw R-a d lc Co., 135 AD2d 378 [la 18871). Dept. Since the coop and property manager have mat their burden of proving their defenses and Blaine has not raised material triable issue8 of fact, the coop and property manager s motion for summary judgment dismissing the complaint and all cross claims against them is granted as well. Concluslon Based upon the foregoing, It is hereby ORDERED Shaira Construction Corp. s motion for summary judgment that dismissing the cornplaint and all cross claims against It is granted and all claims against Shaira are dismissed; and it is further ORDERED 304 West 88 Street Apartment Cow. and M&H, LLC s motlon for that aummary judgment dismissing the complaint and all cross cleima against them is granted and all claims agalnst 304 West 88 Street Apartment Corp. and M&H, LLC are dismissed; and it i further s ORDERED the clerk shall enter judgment in favor of defendant S h a h that Construction Corp. against the plaintiff dismissing the complaint and against defendants 304 West 88IhStreet Apartment Cop. and M&H,LLC dismissing their cross claims; and it is further ORDEReD that the clerk shall enter judgment in favor of defendants 304 Weat -Page 14 of 15- [* 16] Street ApaFtrnent Carp. and M8H, LLC againat the plaintiff dismissing the wrnplaint and against defendant Shaira Construction Corp. dismissing its CFWS claims; and It is further ORDERED any relief requested but not specifically addressed is hsrsby that denied; and it is further ORDERED this constitutes the decision and order of the that Dated: court. New York, New York September 4, 2012 So Ordered: -x Hon. Judith J. -Page 15 of 15- i e, JSC
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