Rivera v Demarco

[*1] Rivera v Demarco 2008 NY Slip Op 52024(U) [21 Misc 3d 1109(A)] Decided on September 22, 2008 Supreme Court, Kings County Hinds-Radix, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 22, 2008
Supreme Court, Kings County

Anthony Rivera and Sandra Rivera, Plaintiffs,

against

Michael Demarco and Martha Demarco, Defendants,



13318/05

Sylvia O. Hinds-Radix, J.

Upon the foregoing papers, defendants Michael Demarco and Martha Demarco move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the plaintiffs' complaint. Plaintiffs cross move for an order, pursuant to CPLR 3025 (b), for leave to amend their bill of particulars.

In this negligence action, plaintiff Anthony Rivera ("plaintiff") seeks damages for injuries he sustained on August 7, 2002, when he allegedly tripped and fell off the roof of a four story residential apartment building, located at 430 86st Street, Brooklyn, New York. Plaintiff was twenty-two years old at the time of the incident. On May 23, 2005, he commenced the instant action against defendants Michael Demarco and Martha Demarco, as owners of said building, alleging, inter alia, that defendants were negligent in the maintenance of the building. In addition, plaintiff's wife Sandra Rivera, asserted a derivative claim. Issue was joined by the service of a verified answer on June 23, 2005. Plaintiffs filed their Note of Issue and Certificate of Readiness on October 10, 2007. Discovery is now complete and the instant motions are now before the court.

Plaintiffs allege in their bill of particulars, inter alia, that defendants were negligent in that they allowed their property to be kept in a dangerous condition; they failed to give any notice or warning to the plaintiff; they failed to provide a safe means of egress; and they maintained the premises in a careless and reckless manner. Plaintiffs also allege that defendants were negligent in that there was no security in the building or rooftop; there was no lighting or illumination on the rooftop; the rooftop was dirty, [*2]dangerous and full of debris which made walking on the rooftop dangerous and hazardous. Further, plaintiffs allege that the rooftop was filled with rolled up fencing which presented a hazardous and dangerous condition and there were no warning signs of the dangerous conditions present on the rooftop.

At his deposition, plaintiff testified that on August 7, 2002, he entered the building at 430 86th Street to smoke marijuana with his friend Jay, a tenant in the building. Jay went into his house to get the "weed," and plaintiff went up to the roof and waited for Jay. Plaintiff claimed that he opened the door to the roof and walked four to five steps away from the door to a pole situated on the roof. As he was holding onto the pole, plaintiff heard a noise from inside the hallway. He walked back toward the door, grabbed the door- latch and pulled the door open. Plaintiff testified that he must have pulled the door with "a little too much force" because the door swung back. He took a step back and his "foot somehow got tangled" into a roll/spool of television cable wires, causing him to trip backwards. He grabbed hold of a television antenna that was screwed into the wall but the antenna came off. Plaintiff claims that he "blacked off" and then fell off the roof. As a result of his accident, plaintiff sustained serious personal injuries. Plaintiff alleged during his deposition that he observed a fencing about six to eight feet long rolled "nice and neatly" on the roof; the roof had no lighting; no working alarm; and the door to the roof remained opened at all times. He further testified that he had been to the roofs of the buildings on 86th Street between 4th and 5th Avenues about five times prior to the date of his accident, and that the roofs are all connected.

In support of their motion for summary judgment, defendants argue, among other things, that there were no dangerous or defective conditions on the roof, and in any event, there is no evidence that they created the alleged dangerous condition on the roof or they had actual or constructive notice of the alleged dangerous condition that plaintiff claimed caused him to fall. Mr. Demarco testified at his deposition that the building at 430 86th Street was owned by his wife Martha Demarco and he was the Registered Managing Agent. He described the size of the roof as being about fifty feet by one hundred feet, with an enclosed parapet wall about two feet high. Mr. Demarco contends that there was a building superintendent on site who inspected the roof from time to time. He doubted that there was debris or dirt on the roof and stated that he was not aware of any cable wires, satellite dishes or fencing on the roof. According to Mr. Demarco, he received no complaints about people using the roof and he testified that on August 7, 2002, no work was being done on the roof and no fencing was installed. He further testified that the roof had a steel door but had no locks or security devices and no sign warning people to stay off the roof. According to Mr. Demarco, the building was sold on December 12, 2005.

In further support of their motion for summary judgment, defendants maintain that it was not foreseeable that plaintiff would be on the roof at 4:00 A.M. to smoke marijuana and argued that plaintiff's injuries were proximately caused by his own willful behavior in engaging in hazardous and unlawful conduct. Moreover, defendants argue that plaintiffs [*3]have failed to demonstrate that defendants breached a duty of care to illuminate their property. In this regard, defendants cite to case law which stands for the proposition that a private owner has no duty to illuminate his or her property during hours of darkness.

The court notes that it is well settled that a landowner must act as a reasonable person in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances including the likelihood of injury to others, the seriousness of the potential injury, and the burden of avoiding the risk (Basso v Miller, 40 NY2D 233, 241 [1976]. This duty of care does not encompass a general requirement that "landowners . . . illuminate their property during all hours of darkness [since] the financial and environmental costs would surely outweigh any social benefit" (Paralta v Henriquez, 100 NY2d 139, 145 [2003]). Consequently, an accident caused by lack of illumination alone will not result in liability for a landowner, particularly where the accident involved an unexpected guest or an area closed to the public. However, a court "would be hard pressed to conclude that a landowner with knowledge of a condition easily alleviated by illumination (such as a step or curb) is not required to light the area" (id. at 145). Thus where an accident is caused by a lack of illumination combined with an additional hazard such as a dark mat or steps or an open door leading to a basement stairway, the question of whether the homeowner breached his or her duty of reasonable care should be left to the trier of fact (Pollack v Klein, 39 AD3d 730 [2007]; Miccoli v Kotz, 278 AD2d 460 [2000]). In the instant case, it cannot be said, as a matter of law, that defendants had a duty to illuminate the roof of the building at the time of plaintiff's accident.

In opposition to the defendants' motion for summary judgment, plaintiffs contend that there is an issue of fact as to whether the defendants or their employees actually placed the cable wire in the location where it caused the plaintiff's fall, and whether the defendants had constructive notice of the existence of the dangerous condition. Plaintiffs assert that according to the deposition testimony of Michael Demarco, he had knowledge of the fact that the building and the roof were easily accessible by members of the public and were not protected by any security devices, locks or security personnel; that the roof was unlit; and that there were no signs posted warning people not to go on the roof. Plaintiffs contend that these facts demonstrate that the defendants failed to meet their obligation to conduct periodic inspections to determine the condition of the rooftop, and there is a genuine issue of fact as to whether defendants had constructive notice of the condition of the roof which caused plaintiff's harm.

In reply, defendants reiterated that they did not have actual or constructive notice of the alleged dangerous condition on the roof, nor did they create the alleged condition.

It is well established that summary judgment is a drastic remedy which should not be granted when there is any significant doubt as to the existence of a triable issue of fact (Van Noy v Corinth Cent. School Dist., 111 AD2d 592 [1985]). Where, however, one seeking summary judgment tenders evidentiary proof, in admissible form, establishing its defense sufficiently to warrant the court as a matter of law to grant a judgment in its [*4]favor, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In order to prevail on a cause of action for personal injuries due to a dangerous condition, a plaintiff must establish that the defendant was responsible for the allegedly dangerous condition, either because the defendant created the condition which caused the accident or because it had actual or constructive notice of the condition (Lewis v Metropolitan Trans. Auth., 99 AD2d 246, 251 [1984] aff'd 64 NY2d 670 [1984]).

Finally, to constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Bykofsky v Waldbaum's Supermarket, 210 AD2d 280, 281 [1994] quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1985]. In the instant case, plaintiffs contend that a question of fact exists as to whether the littered condition on the roof which may have existed for an indeterminate period gave defendants constructive notice of the hazard which caused plaintiff's accident. It is true that where a defendant has actual knowledge of a recurrent dangerous condition, the defendant can be charged with constructive notice of each reoccurrence of that condition (see Perlongo v Park City 3 & 4 Apartments, Inc, 2006 WL 1851017 [2006]; Batista v. KFC Nat. Management Co.21 AD3d 917 [2005]; Fielding v. Rachlin Management Corp., 309 AD2d 894 [2003]). However, in its thorough review of the record and parties' submissions, the court finds that defendants have made a prima facie showing of their entitlement to summary judgment dismissing the complaint. Plaintiffs, in response, have failed to rebut said showing with admissible evidence sufficient to raise a legitimate question of fact requiring a trial of this action. Here, there is no evidence in the record that the defendants or their agents created the alleged dangerous condition on the roof or that defendants were made aware of any such condition which could have caused plaintiff to trip and fall. Certainly, plaintiff's deposition testimony that he noticed debris, litter and television cable wires on the roof prior to his accident does not constitute evidence of a regular recurrent condition of which defendants must be aware (see Espinal v New York City Housing Authority, 215 AD2d 281 [1995]. Moreover, no notice can be inferred where, as here, plaintiff has failed to demonstrate that any prior complaints of debris or litter on the subject roof were made known to the defendants (see Smith v Funnel Equities, 282 AD2d 445, 446 [2001]; see also Dane v Taco Bell Corp., 297 AD2d 274 [2002]). Accordingly, it cannot be said that the defendants failed in their duty to exercise reasonable care to maintain the roof in a reasonably safe condition.

Further, there is no evidence to support plaintiffs' claim that defendants failed to provide security in the building or on the roof. As plaintiff himself testified, he entered the building with his friend Jay, who was a tenant in the building. Moreover, it cannot be said that defendants failed to exercise reasonable care to prevent access to the roof since it was not foreseeable to defendants that plaintiff would be on the roof at that time of the [*5]morning. Additionally, there is no evidence in the record that defendants were aware of people's presence or prior activities occurring on the roof. Accordingly, the court finds no triable issues of fact exist as to any negligence on the part of the defendants, which could have proximately caused the plaintiff's injuries, and accordingly, summary judgment dismissing plaintiffs' complaint against defendants must be granted (see Torres v New York City Housing Authority, 292 AD2d 519 [2002]).

In light of the determination, plaintiffs' cross motion, for an order, granting leave to amend their bill of particulars so as to allege violations of New York City Building Code sections 27-127and 27-128 and to identify plaintiffs' expert, is denied.

The court has carefully considered each of plaintiffs' remaining arguments, and rejected them as being without merit.

The foregoing constitutes the decision and order of this court.

E N T E R

J. S. C.