Navarre v Ketcham

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Navarre v Ketcham 2013 NY Slip Op 30522(U) March 5, 2013 Supreme Court, Suffolk County Docket Number: 10-1161 Judge: Thomas F. Whelan 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] INDEXNO. 10-1161 CAL. NO. 12-002770T - SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLKCOUNTY P R li:S E N T : Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 7- 19-12 ADJ. DATE 11-26-12 # 004 - MG; CDISP Mot. Seq. KUJAWSKI & KUJAWSKI Attorney for Plaintiff 1637 Deer Park Avenue Deer Park, New York 11729-0661 MAF Y ANN NAVARRE, Plaintiff. - against - MAF IE C. KETCHAM, TRUSTEE and GARY C. KITCHAM, TRUSTEE, trustees to the MAF IE K. KETCHAM TRUST, dated February 2, 19 Zi, having an address at 567 Washington Avenue, Lindenhurst, New York, BAXTER SMITH & SHAPIRO, P.C. Attorney for Defendants 99 North Broadway Hicksville, New York 11801 Defendants. Upon the following papers numbered 1 to 36read on this motion for summaw judgment ;Notice of MotionJ Order ti I Show Cause and supporting papers 1 - 26 ; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 27 - 34 ; Replying Affidavits and supporting papers 35 - 36 ; Other -; (Wker =w tl a )it ' ORDERED that this motion (#004) by defendants for an order pursuant to CPLR 3212 grantirig summary judgment dismissing plaintiffs complaint is granted and the complaint is dismisscd. This is an action to recover damages for injuries allegedly sustained by plaintiff on Septeriber 5,2008 at approximately 7 p.m. when she slipped on the top step of an interior staircase she W L I Sdescending and fell to the bottom of the stairs at premises located at 10 Colt Avenue. Babylm, New York. At the time of the accident, plaintiff was renting the premises from defendant trustees, Gary and Marie Ketcham. Plaintiff alleges that defendants were negligent in, among other things. f'ailing to install proper handrails on the stairway and that defendant had notice of said [* 2] Navar e v Ketcham et als Index 1Vo. 10-1 161 Page 2 defect ve and dangerous condition. By her amended/supplemental bill ofparticulars, plaintiff alleges that de fendants violated the New York Uniform Fire Prevention and Building Code, Subchapter E3 (Building Construction) 9 NYCRR Cj 7 13.1 (a), (b)( 1 ), (b)(4), (c)(2), (Q( l), (h), and Cj 1031.1, New York I Jniform Fire Prevention and Building Code, Subchapter F, Housing Maintenance, 19NYCRR 55 12 0.1, 1240.2, 1245.1 and 1242.7 (c), and the Property Maintenance Code of the State of New York (2002) $5 101.2, 102.1 and 102.2. Defendants now move for summary judgment dismissing the complaint on the grounds that defenc ants did not cause or create a dangerous condition or have notice of any dangerous condition on the staircase; plaintiff does not know what caused her to fall and thus cannot establish that her accide i t was proximately caused by the lack of a handrail; the staircase was readily observable by plaintiff such that there was no duty to warn; the premises had a certificate of occupancy such that plaintirf cannot establish a violation of any building codes; and defendants never performed an!^ constri iction, alterations or renovations to the premises or the staircase. Defendants submissioin:s in sup])art of the motion include the summons and complaint, defendants answer, plaintiffs bills of parl iculars, the deposition transcripts of plaintiff and defendant trustee Gary Ketcham, color photographs of the subject staircase taken by plaintiff and identified by her at her deposition, the rental agreement between plaintiff and her boyfriend and defendant trustees Gary and Marie Ketcham, and the affidavit of Gary Ketcham. Plaintiffs deposition testimony on April 20,20 1 1 reveals that plaintiff had been living at the premises four or five years at the time of the accident. She described the subject staircase as being steep with approximately ten carpeted steps and a railing or bannister that ran from the bottom to halfway up the left side of the staircase, when looking downward. There is a horizontal ledge located on each side of the staircase, running parallel to the top of the staircase. Plaintiff explained that at I he time of the accident, she was wearing flip-flops on her feet as she was walking down the staircae, her foot slipped on the first step near the top landing, she began to fall to the right and tried to break her fall with her right arm, which contacted the stairs, and she fell to the bottom of the stairca,,;e.Plaintiff testified that she did not know what it was that she slipped on and that she is not sure which foot slipped. Just prior to her fall she was looking down and she was not carrying anythiri~g.In describing the fall, she stated, I was going down the stairs, slipped, fell down, tried to break my fall with my arm, came down the stairs, and my arm was obviously broken. ... When the answer was read back, the plaintiff added, There was no railing to grab onto, so ... (EBT, p 33). She fui.ther explained that after she slipped, her body moved to the right side and forward, and she may have grazed the wall on her right side. She did not attempt to hold or grab onto the horizontal ledge 11Icated to her righl. While she mentioned that there was no railing there (EBT, p 37), she repeated her actions as I remember going down trying to break my fall with my arm (EBT, p 41; see ais) pp 42 and 44). She did not state that she reached out instinctively to grab a handrail, but only in an attempt to brake her fall. Plaintiff also testified that after the accident she did not notifj [* 3] Navar,e v Ketcham et als Index 1Vo. 10- 1 16 1 Page 3 Gary and Marie Ketcham of her fall and that she never complained to them about the condition of the staircase prior to her fall. Gary Ketcham testified at his deposition on November 17,201 1 that the premises is owned by the Marie K. Ketcham Trust and that he and his wife Marie are the trustees, that the premises contai tis a two-family house, that a certificate of occupancy for the house was issued in 1974, and that he began renting the house in 1982. In addition, Mr. Ketcham testified that he was renting 011e of the iinits in the house to plaintiff on September 5 , 2008, that he had a rental housing permit from the Villlage of Babylon for said house, and that the Village performed annual inspections of tlx house. He explained that plaintiffs unit was a two-story containing the second and third floors. Mr. Ketchitm identified the lease he drafted that he and his wife entered into with plaintiff and her boyfriend indicating the original occupancy date of May 1, 2006 and explained that the lease was month-to-month with no termination date and that it was still in effect at the time of plaintiff s accideni. He stated that there were handrails adjacent to the lower steps ofthe staircase and paneled half-w slls with ledges adjacent to the steps on the upper portion of the staircase. Mr. Ketcham noted that there was never any handrail installed in the upper portion of the staircase from the time lie bough1 the house in 19821.up to the date of plaintiffs accident, and that the building inspector walked up and down said staircase annually and never told him to install a handrail. He first learned of plaintiffs accident when he received a letter from an attorney one year after its occurrence. I3y affidavit dated June 11, 2012, Mr. Ketcham avers that from the time that he purchasetl the sukiject house in 1982 until the time of plaintiffs accident, he never performed any construction, alterations or renovations of the property and never performed any work on the interior staircase locatetl in the second floor apartment prior to plaintiffs accident. In addition, he states that he was never iiotified by the Village of Babylon or anyone else prior to plaintiffs accident that a handrail should be installed on the interior staircase nor did he receive any complaints from plaintiff or her boyfrit nd regarding the condition of the staircase. Mr. Ketcham further states that he performed i1 search of his own files as well as the building file maintained by the Village of Babylon concerning the sut ject premises and attaches the results of his search. The attachments include a letter dated Februzry 16, 1982 from the then-Building Inspector of the Village indicating that the subject premises is a non-conforming two-family dwelling built prior to the date that the Building Zo11e Ordinmce was adopted, April 30, 193 1, the housing rental permits for the year 2008, and the annual Rental Housing Inspection reports dated February 29,2008 and February 26,2009 from the Village indicating that the premises passed inspection. The Court notes that said inspection reports include stairs! banister as a listed item of the building interior to be inspected. It is well settled that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence in admissibk form t o demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., ti13 [* 4] Navarie v Ketcham et als Index \io. 10-1161 Page 4 NY2d 320,508NYS2d923 [1986];Zuckerman vCityofNew York, 49NY2d557,427NYS2d595 119801; Friends ofAnimals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). The failure to make such a prima facie showing requires the denial of the motion regardless ofthe :,ufficiencyofthe opposing papers (see WinegradvNew York Univ. Med. Ctr., 64 NY2d 851, 487 N (S2d 3 16 [ 19851). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form suffici :nt to establish the existence of material issues of fact which require a trial of the action ( A l v a w v Prospect Hosp., 68 NY2d at 324, supra, citing to Zuckerman v City of New York, 49 NY2d at 562, supra). The owner or possessor ofproperty has a duty to maintain his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriou:ness of the injury, and the burden of avoiding the risk (Basso v Miller, 40 NY2d 233,241, 3 86 N IS2d 564 [ 19761 [internal quotation marks omitted]). The scope of a landowner s duty variers with tlie foreseeability of the possible harm (see Tagle v Jakob, 97 NY2d 165, 737 NYS2d 33l [2001]; Kimen v FalseAlarm, Ltd., 69 AD3d 579, 893 NYS2d 158 [2d Dept 20101). Irrespective of the ibsence of a statulory obligation, the owner and possessor of the property have a continuing conmm-law duty to maintain their premises so that it is safe from foreseeable harm (see Kellmarz v 4.5 Tliemann Assoc., 87 NY2d 871,638 NYS2d 937 [1995]; Jacqueline S. v City of New York, 8 1 NY 2d 288,598 NYS2d 160 [ 19931; Kimen v False Alarm, Ltd., 69 AD3d 579, supra). Defendants, as the movants for summary judgment, have the burden of refuting plaintiff s conten tion that the staircase where plaintiff fell was in violation of certain statutory and code provis ons (see Velez v 955 Tenants Stockholders, Inc., 66 AD3d 1005,887 NYS2d 646 [2d Dept 20091; I iscusi v Fenner, 10 AD3d 361, 781 NYS2d 121 [2d Dept 20041). Here, defendants did establish that the subject premises was not under the purview of the New York Uniform Fire Prever tion and Building Code and the Property Maintenance Code of the State of New York as it was btiilt prior to the enactment of the said Code provisions (see Sebastiano v New York City Tr. Autlz., 86 AD3d 432,926 NYS2d 506 [lst Dept 201 11, lv denied 18 NY3d 810,944 NYS2d 48 1 120121;Swerdlow v WSKProperties Corp., 5 AD3d 587, 772 NYS2d 864 [2d Dept 20041; Leste,r v Wattl~rman, AD2d 683,664 NYS2d 927 [2d Dept 19971). 242 Moreover, [iJn a slip-and-fall case, a plaintiffs inability to identify the cause of the fall is rata1 tc the action because a finding that the defendant s negligence, if any, proximately caused tlne plaintilT s injuries would be based on speculation (Capasso v Capasso, 84 AD3d 997, 998, 923 NYS21i 199 [2d Dept 20111; see Dennis v Lakhnni, 102 AD3d 651, 958 NYS2d 170 [2d Dept 20131; Smith vMaloney, 91 AD3d 1259, 936 NYS2d 791 [3d Dept 20121), and a defendant can establish its prima facie entitlement to judgment as a mater of law by showing that the plaintiff cannot identify the cause ofthe accident (see Califarzo vMuple Lanes, 91 AD3d 896,938 N Y S I l [* 5] Navarre v Ketcham et als IndexNo. 10-1161 Page 5 140 [211Dept 20121; Rajwan v 109-23 Owners Corp., 82 AD3d 1199, 919 NYS2d 385 [2d Dept 20111; Patrick v Costco Wholesale Corp., 77 AD3d 810, 909 NYS2d 543 [2d Dept 20101; I$ Jackson v Fenton, 38 AD3d 495, 831 NYS2d 260 [2d Dept 20071 [plaintiff clearly identified the cause cif her fall as the worn tread cover and the absence o f a handrail on the right side of the subjecit winding staircase at her deposition]). Here, at her deposition, plaintiff could not identify wh,at caused her to slip and, as noted above, defendants established the inapplicability of the asserte:cl building codes. Caselaw concerning the absence of a handrail on a staircase can be difficult to follow. In cases where a defendant does not establish, as a matter of law, that the premises are exempt from thLe appliczlble building codes, summary judgment will be denied, since the absence of the rail, ifrequired by law could be a proximate cause of the accident (see Viscusi v Fenner, 10 AD3d 361,78 1 NYS2d 121 [2tl Dept 20041). As explained in Viscusi, supra, In fact, [elven if the fall was precipitated by a misstlzp, if a hand-rail had been furnished, the [plaintiff] might have held on to it as he descended the stairs, and could have avoided falling. Therefore, the absence of the rail, zfrequired by law, would seem to be a proximate cause of the accident (Lattimore v Falcone, 3 5 AD2d 1069, 3 16 NYS2tL 363 [4 hDept 19701, quoting Courtney vAbro Hardware Corp.,286 App Div 261,262,142 NYS2d 790 [1955], affd 1 NY2d 717, 151 NYS2d 930 [1956] ... [italics added]. Caselaw in ihLe Second Department echos the ifrequired by law language from Lattimore, supra, (see Hotzoglou vHotzc~glou, AD2d,594,634NYS2d501 [2dDept 1995];PalmervPrimaProperties, 101 221 Inc., AD3d 1094,956 NYS2d 537 [2d Dept 20121; Wajdzik v YMCA ofGreaterNew York, 65 AD3d 5 8 6 , 883 N7 S2d 718 [2dDept 20091; Christian vRailroadDeliGrocery, 57AD3d599,869NYS2d213 [2d Dept 20081; see also Kanarvogel v Tops Appliance City, Inc., 271 AD2d 409,705 NYS2d 644 [2d Dept 20001; Hoberg v Shree Granesli, LLC, 85 AD3d 965, 926 NYS2d 578 [2d Dept 201 11; Cruz v Lomet Hous. Dev. Fund Corp.,7 AD3d 660,776 NYS2d 842 [2d Dept 20041). Elven where the exact language is not utilized, the failure to demonstrate that a ramp or staircase need not have been equipped with a handrail pursuant to applicable building code ordinances will prcclude the granting of summary judgment dismissing the action (see Russo v Frankels Garden Ci4~ R~wlty Co., 93 AD3d 708, 710, 940 NYS2d 144 [2d Dept 20121; Wininger v Congregation Neclilas Meharim, 83 AD3d 827,920 NYS2d 423 [2d Dept 201 11; Brice v Vermeulen, 74 AD3d 858,901 NYS2d 853 [2d Dept 20101; Velez v 955 Tenants Stockholders, Inc., 66 AD3d 1005,887 NYS2cl 646 (2d Dept 20091; Spallina v St. Camillus Church, 53 AD3d 650, 862 NYS2d 552 [2d Dept 2 m ] ) . 1 I n Asaro v Monttzlvo, 26 AD3d 306, 812 NYS2d 558 (2d Dept 2006), the defendant did not establish, as a matter of law, that the premises were exempt from the applicable building code ordinaiice with regard to an absent handrail. However, the defendant did contend that the failure of the plaintiff to identify the cause of her fall was fatal to her case. The Second Department rejected [* 6] Navarr ev Ketcham et als Index No. 10- 1 16 1 Page 6 the claim, by quoting language from its prior Kanarvogel, supra, holding, which is similar to the above-zited language from Lattimore, supra, without reference to the phrase ifrequired by law. HoweL er, as noted, a question of fact existed in that case as to the applicability of the building code provision (see Boudreau-Grillo ~ R a m i r e z74 AD3d 1265, 904 NYS2d 485 [2d Dept 20101; see , ulso Tibosa v DiCristo, 91 AD3d 944, 937 NYS2d 623 [2d Dept 20121). Such holdings focus on the applicability of building code provisions since a violation of a code cmstitutes only some evidence of negligence; it does not constitute negligence per se (see Brigandi v Piechowicz, 13 AD3d 1105,787 NYS2d 790 [4th Dept 20041). As noted above, such is indepelident of the comnion law duty imposed upon an owner of land (see Kellman v 45 Tiemam Assoc. 87 NY2d 871, 872, supra). In recognition thereof, in a case that did not involve the failure of the plaintiff to identify the cause (If her fall, the Second Department held that the fact that the premises did not fall under the purvielv of the New York State Fire Prevention and Building Code, only absolved defendants of the manda ory duty that the Code provisions might otherwise impose (see Swerdlow v WSKProperth Corp., 5 AD3d 587,772 NYS2d 864 [2d Dept 20041) and the defendants nevertheless had continuing duties 1s the owners of the premises to maintain it in a reasonably safe manner (see id., 588). at There, ,Iside from the absence of handrails, the plaintiff alleged that inadequate lighting and steps of unequal heights created a dangerous condition, all of which were alleged to have contributed to plaintiffs accident. Thereafter, in actions that involved particularly hazardous conditions, even if building code provisi,ms were not violated, the common-law duty raised an issue of fact as to whether the premises were maintained in a reasonably safe condition (see Kimen v False Alarm, Ltd., 69 AD3d 579,893 NYS2cl 158 [2d Dept 201 01; see also Zebzda v Hudson Street, LLC, 72 AD3d 679,897 NYS2d 727 [2d Delit 201 01 [staircase without a handrail was wet in a building being converted from commercial space into condominiums]). Some cases have followed the above-described language from the decisioii inAsaru, supra, without explanation as to whether an issue existed as to whether the absence of a haridrail violated a building code (see Palmer v 165E. 72ndApt. Curp., 32 AD3d 382,382,819 NYS2c 105 [2d Dept 20061; Antonia vSrour, 69 AD3d 666, 893 NYS2d 186 [2d Dept 20101). Here, the defendants made a prima facie showing (1) that the premises was not under the purview of the alleged code provisions and (2) that the plaintiff could not identify the cause of hler fall. Atiditionally, with regard to any common law claim, defendants offered annual rental inspections of the iouse, which included stairs/banister as a listed item and the lack of prior notice from anyone including the plaintiff, as to the need for a handrail. While the submitted photographs demon: trate that the segment of the staircase where plaintiff began her descent did not have a handrail and thai the existing handrail did not extend the full length of the stairway, plaintiffs testimony was [* 7] Navarr 2 v Ketcham et alms Index 140. 10-1161 Page 7 that shc: was falling to the right, away from the portion of the stairway where the handrail would have been. Moreover, she testified that she tried to break her fall by putting her hand down toward the stairs, iinlike the cases where a plaintiff testifies that he or she reached out to grab a handrail that was absent (see Trosa v DiCristo, 91 AD3d 944, supra; .4ntonia v Srour, 69 AD3d 666, supra). Based upon all of the above, the Court finds that the defendants established their prima facie entitlernent to judgment as a matter of law by demonstrating that they maintained their property in a reascnably safe condition. In opposition, plaintiff failed to raise a triable issue of fact (xee Zucker man v City of New York, 49 NY2d 557, 562, supra). The affidavit from the engineer discussed various code deficiencies, but offered no proof from which it could be inferred that the provisims relied upon were in effect when the building was constructed (see Hyman v Queens CountJiBancorp, Inc., 307 AD2d 984,763 NYS2d 669 [2d Dept 20031; see also Prisco v Long Is. Univ., 258 AD2d 451, 684 NYS2d 604 [2d Dept 19991). No evidence was offered that alterations or repa rs occurred so as to bring the premises within the coverage of the alleged code provisions (see Lester v Waterman, 242 AD2d 683, 664 NYS2d 927 [2d Dept 19971; King v JNV Limited, 275 AD2d 733, 71 3 NYS2d 225 [2d Dept 20001) or connecting the alleged violations to plaintiffs fall (see Rrjwan v 109-23 Owners Corp., 82 AD3d 1199, supra). While an expert affidavit can raise issues with regard to common-law negligence, here, the evidenc:e fails to establish that the subject first step of the staircase was inherently dangerous or that it constituted a hidden trap (see Burke v Canyon Rd, Rest., 60 AD3d 558,876 NYS2d 25 [lst Dept 20091; see also Nunez-Wilson v Carmo Realty, 85 AD3d 888, 925 NYS2d 342 [21d Dept 201 111). The di: cussion of riser heights and tread widths on the staircase fail to raise an issue of fact as to a proximate cause of this particular accident. Plaintiff has failed to demonstrate the existence o f a triable s u e of fact as to whether the defendants were negligent (see Ford v Benevolent & Protective Order cfElks, 70 AD3d 630, 892 NYS2d 898 [2d Dept 20101; cf Yefet v Shalmoni, 81 AD3d 637, 915 NJ S2d 866 [2d Dept 201 I]; Grayson v Hall, 3 1 AD3d 606, 817 NYS2d 904 [2d Dept 20061; Ocasio v Board of Educ. o the City ofNew York, 35 AD3d 825,827 NYS2d 265 [2d Dept 20061). f Accordingly, the instant motion is granted and the co Dated:_-

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