Parra v 648 Grand St. Hous. Dev. Fund Corp.
Annotate this CaseDecided on August 6, 2013
Supreme Court, Kings County
Ricardo Parra, Plaintiff,
against
648 Grand Street Housing Development Fund Corporation and St. Nicholas Neighborhood Alliance n/k/a St. Nicks Alliance, Defendants.
14255/09
Plaintiff Attorney: Katz & Katz, 41 Madison Avenue, Suite 4000, New York, NY 10010
Defendant Attorney: Christopher J. Whitton, Esq., Rende, Ryan & Downes, LLP, 202 Mamaroneck Avenue, White Plains, NY 10601
David I. Schmidt, J.
The following papers numbered 1 to 8 read herein:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-2
Opposing Affidavits (Affirmations)3-5
Reply Affidavits (Affirmations)6
Plaintiff's Memorandum of Law7
Defendants' Reply Affirmation to Plaintiff's Memorandum of Law8
Upon the foregoing papers, in this action by plaintiff Ricardo Parra (plaintiff) to recover damages for personal injuries sustained by him in a fall, defendants 648 Grand [*2]Street Housing Development Fund Corporation (648 Grand) and St. Nicholas Neighborhood Preservation Corp., sued herein as St. Nicholas Neighborhood n/k/a St. Nicks Alliance (St. Nicholas) (collectively, defendants) move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing plaintiff's complaint as against them.
BACKGROUND
On June 10, 2009, plaintiff filed this action, seeking to recover damages for physical injuries sustained by him on April 6, 2008, allegedly caused when he fell from the roof of a building located at 648 Grand Street, in Brooklyn, New York (the building). Plaintiff initially filed his summons and complaint against 648 Grand, who is the owner of the building, and, on March 15, 2012, he filed an amended summons and complaint, adding St. Nicholas, who is the manager of the building, as an additional defendant. Defendants interposed their respective answers, and discovery has been completed. Plaintiff filed his note of issue on June 6, 2012.
According to plaintiff's deposition testimony, prior to his fall on April 6, 2008, he had been to the building about 10 or 20 times to visit his friend, Hector Torres (Torres), who resided in apartment 5F on the top floor of the building, and he would often sleep over at Torres' apartment (Plaintiff's Dep. Transcript at 15-17, 22). Plaintiff was not a tenant of the building and did not pay rent (Id. at 28). Plaintiff did not have a key, and would buzz the intercom for Torres to let him inside the building, or, on occasion, the door to the building was opened by other tenants and he would go upstairs and wait for Torres in the hallway (Id. at 21, 28, 33).
Plaintiff stayed over Torres' house on Saturday, April 5, 2008, and, on Sunday, April 6, 2008, after going to church, he went to a bar, but did not know how long he was there or how much he drank (Id. at 19, 23-24). He then went back to Torres' apartment, and they had a discussion, and Torres threw him out because of his behavior (Id. at 26-27, 35-36). Plaintiff did not remember anything that subsequently happened to him after he left Torres' apartment, and the next thing he remembered was awakening at Bellevue Hospital (Id. at 17-19). Plaintiff did not remember if he went up the stairs to the roof after Torres threw him out of his apartment, nor did he remember falling from the roof of the building (Id. at 37-38). Plaintiff asserts that someone told him that he fell from the roof, but, other than that, he did not remember what happened to him (Id. at 47-48). No one witnessed plaintiff's fall, and he was already on the ground when he was found (Id. at 48).
Before his accident, plaintiff never went to the roof and never saw anyone at the door to the roof on any of the occasions that he waited by the staircase to the roof outside Torres' apartment (Id. at 28, 32, 34-35, 42). Plaintiff specifically testified that he was not aware of any crime in the building before the day of his accident (Id. at 39). Plaintiff did not testify that there was drug use on the roof of the building, but, rather, he testified that he only smoked marijuana while inside Torres' apartment (Id. at 31). [*3]
Jose Rivera (Rivera) has been employed by 648 Grand as the superintendent for the building for 16 years and has also resided there for 16 years (Rivera's Dep. Transcript at 5-6). Rivera testified, at his deposition, that his responsibilities as the superintendent include making sure the alarms are working, and checking all the doors, including the roof door (Id. at 6). He further testified that the front door, which is the only way to gain entrance into the building, is locked all the time (Id. at 7). Rivera also testified that he was in the garbage room when plaintiff's accident occurred, that a woman told him that she heard a real loud noise in the backyard, and that he then went to the backyard to check and saw plaintiff on the backyard floor moaning (Id. at 14-16).
According to Rivera, he checks on the roof one to three times a week (Id. at 29), and had last checked the roof approximately two days before plaintiff's accident (Id. at 20). Rivera testified that the door to the roof is a fireproof door and was a fire door exit (Id. at 76-77). Rivera explained that there was a battery powered alarm attached to the lock on the door to the roof, and that the alarm would go off when the lock is opened (Id. at 23). Rivera also testified that he changed the battery every year (Id. at 33), and that he checked the battery on the alarm to make sure it was working on a weekly basis (Id. at 24-25). Rivera additionally testified that the same lock had been on the roof door for at least 16 years and that the fire department inspects the alarm and lock about once a year (Id. at 42-43).
In addition, Rivera testified that he was not aware of any drug complaints or criminal activity (Id. at 51), and that he did not hear of any complaints about people going out on the roof (Id. at 30-31). He further testified that the police were on the roof after plaintiff's accident for about two hours (Id. at 80). He also testified that he had examined the lock after the accident, and, when he tried to close the door at that time, he saw that the lock was then jammed, and that the battery to the alarm was dead (Id. at 19, 32-33). He also believed that the battery to the alarm had died because the door had remained open following plaintiff's accident when the police and ambulance came (Id. at 33).
Plaintiff's bill of particulars alleges that he was caused to fall from the roof of the building because defendants were negligent in their ownership and maintenance of the building. Specifically, plaintiff asserts that defendants negligently allowed a dangerous condition to exist in that they failed to provide adequate security to him, that defendants knew that persons frequented the roof for the purpose of participating in illegal behavior, and that defendants failed to lock access to the roof and provide an alarm system.
DISCUSSION
In support of their motion for summary judgment, defendants argue that plaintiff's complaint cannot be sustained as it is based upon sheer speculation. As set forth above, plaintiff testified, at his deposition, that he does not remember falling from the roof, or if he even was on the roof (Plaintiff's Dep. Transcript at 37-38).
It is well established that " [s]peculation, guess and surmise . . . may not be [*4]substituted for competent evidence, and where . . . there are several possible causes of an accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible'" (Zalot v Zieba, 81 AD3d 935, 936 [2d Dept 2011], lv denied 17 NY3d 703 [2011], quoting Agius v State of New York, 50 AD2d 1049, 1050 [3d Dept 1975]; see also Johnson v Sniffen, 265 AD2d 304, 304 [2d Dept 1999]; Scheer v City of New York, 211 AD2d 778, 778 [2d Dept 1995], lv denied 86 NY2d 705 [1995]). Here, plaintiff's deposition testimony establishes that he does not know how he fell, making it possible that he could have fell for any number of reasons, which have no connection with any negligence on the part of defendants.
" Since it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation'" (Zalot, 81 AD3d at 936, quoting Teplitskaya v 3096 Owners Corp., 289 AD2d 477, 478 [2d Dept 2001]; see also Knudsen v Mamaroneck Post No. 90, Dept. of N.Y.—Am. Legion, Inc., 94 AD3d 1058, 1059 [2d Dept 2012]; Rizos v Galini Seafood Rest., 89 AD3d 1004, 1004 [2d Dept 2011]; Bolde v Borgata Hotel Casino & Spa, 70 AD3d 617, 618 [2d Dept 2010]). Thus, defendants have established their prima facie entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony demonstrating that plaintiff cannot identify the cause his accident and that any determination as to how the accident occurred would be based upon sheer speculation (see Zalot, 81 AD3d at 936; Teplitskaya, 289 AD2d at 478). This shifted the burden to plaintiff to raise a triable issue of fact as to defendants' responsibility for the cause of the accident (see Zalot, 81 AD3d at 936; Bolde, 70 AD3d at 618).
Plaintiff, in opposing defendants' motion, argues that cause can be inferred from the circumstances of the accident. Such argument must be rejected. Although " [p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident,'" " mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action'" (Steinsvaag v City of New York, 96 AD3d 932, 933 [2d Dept 2012], quoting Costantino v Webel, 57 AD3d 472, 472 [2d Dept 2008]; see also Oettinger v Amerada Hess Corp., 15 AD3d 638, 639 [2d Dept 2005]). "Cases grounded on wholly circumstantial evidence require a showing of sufficient facts from which the negligence of the defendant and the causation of the accident by that negligence can be reasonably inferred" (Thomas v New York City Tr. Auth., 194 AD2d 663, 664 [2d Dept 1993]). While "[t]he law does not require the plaintiff's proof to exclude every other possible cause of the accident, other than the defendant's negligence . . . the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation" (id.). Here, there is no showing of sufficient facts from which defendants' negligence and the causation of [*5]plaintiff's accident by defendants' negligence can be reasonably inferred.
Plaintiff further argues that the fact that he does not remember how he fell should not bar his claim. He relies upon the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76, 80 [1948]), pursuant to which, when a plaintiff suffers from amnesia as a result of an accident, he or she is not held to as high a degree of proof (see Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 333-334 [1986]; Williams v Hooper, 82 AD3d 448, 449 [1st Dept 2011]). However, even under the Noseworthy doctrine, a plaintiff "is not relieved of the obligation to provide some proof from which negligence can reasonably be inferred" (DeLuca v Cerda, 60 AD3d 721, 722 [2d Dept 2009]; see also Sanchez-Santiago v Call-A-Head Corp., 95 AD3d 1292, 1293 [2d Dept 2012]; Kasper v Metropolitan Transp. Auth. Long Is. Bus, 90 AD3d 998, 999-1000 [2d Dept 2011]; Acevedo v Hog Wing Lau, 88 AD3d 751, 751-752 [2d Dept 2011]).
Here, plaintiff has not satisfied this obligation since there is no evidence whatsoever as to how plaintiff fell once he allegedly arrived on the roof, and the issue of the reason for plaintiff's fall would necessarily require that the trier of fact engage in speculation. Plaintiff has failed to provide any evidence from which one could reasonably infer that any negligence by defendants caused him to fall from the roof and his allegations that his fall was caused by defendants' negligence rest solely on surmise and speculation (see Williams v County of Westchester, 103 AD3d 796, 797 [2d Dept 2013]; Santiago v Quattrociocchi, 91 AD3d 747, 748 [2d Dept 2012]; Aguilar v Anthony, 80 AD3d 544, 546 [2d Dept 2011]; Barbaruolo v DiFede, 73 AD3d 957, 958 [2d Dept 2010]). Furthermore, the Noseworthy doctrine does not apply where, as here, "the thing which has produced the injury," i.e., how plaintiff was caused to fall, is unknown (Noseworthy, 298 NY at 80; see also Wright v New York City Hous. Auth., 208 AD2d 327, 332 [1st Dept 1995]). "Under these circumstances, where there are several equally plausible explanations for the accident, and no competent admissible proof, only speculation, as to the cause of the accident," the granting of a defendant's motion for summary judgment is warranted (Teplitskaya, 289 AD2d at 478; see also Zalot, 81 AD3d at 936).
Plaintiff nevertheless argues that his claims can be maintained because the reason for his fall from the roof and the fact that he cannot prove how or why he fell is irrelevant. He contends that he is alleging that defendants were negligent due to the fact that he was able to gain access to the roof, and that this ability to gain access to the roof was the reason that he fell, which resulted in his injuries. Specifically, plaintiff asserts that defendants owed him a duty because he was a lawful invitee to the building, and that they breached this duty because he was able to gain access to an area that should have been locked and secure. Plaintiff argues that he, therefore, need not prove how he fell from the roof because his claim is that access to the roof itself was the proximate cause of his injuries, and defendants' negligence can be inferred from the fact that he should have been denied access to the roof. [*6]
Defendants, though, point out that there is no evidence that plaintiff was actually ever on the roof. Plaintiff, in response, argues that since he was found in the alley, he could only have landed in the alley if he fell from the roof. Plaintiff asserts that his presence on the roof can be inferred because the only way he could have gained entry to the alley, where he was found, was from the roof.
Plaintiff relies upon Rivera's deposition testimony that in order to get into the courtyard, you need to go through the garbage room, and that he was the only one who had the key to the garbage room (Rivera's Dep. Transcript at 65-66). Plaintiff asserts that this testimony shows that the only way he could have landed in the alley of the building was from a fall from the roof since he could not have otherwise gained access to it. Plaintiff also relies upon the police report which was prepared by a non-witness, which contains the conclusion that plaintiff fell from the roof. Defendants point out, however, that the picture taken from the roof looking into the courtyard alley where plaintiff was found depicts many windows from which plaintiff could have fallen, including windows located in the stairwell plaintiff used that day. Defendants note that it is, therefore, pure speculation to conclude that plaintiff fell from the roof versus from a window.
Moreover, defendants argue that even if plaintiff fell from the roof, plaintiff cannot prove that his fall was due to any negligence by them, as opposed to plaintiff's own misstep, loss of balance, or even intentional decision to jump. Plaintiff does not deny that he has no evidence as to what it was that caused him to fall from the roof, or how he came to fall off of it, but he maintains that the cause of his fall is the result of having access to the roof regardless of whether he lost his balance or intentionally jumped.
Plaintiff argues that there are questions of fact concerning the maintenance of the door which provided him with access to the roof and the alarm on the roof door. Plaintiff contends that the negligent maintenance of the roof door and alarm allowed him access to the roof, which led to his fall.
Specifically, plaintiff asserts that his access to the roof was through the roof door, which was negligently maintained because it had a broken lock and non-working alarm. In support of this assertion, he submits the affidavit of Hector Ramos (Ramos), dated October 1, 2010. Ramos (who is a plaintiff's purported expert) is employed by T and M Protection Agency as a fire safety director and is licensed by the State of New York and the New York City Fire Department. Ramos' affidavit describes the condition of the roof door two days after the incident. Ramos states that, at that time, he observed that the roof door was slightly open, there was a broken lock on the door, and there was no locking mechanism attached. He further states that he also observed, at that time, that "[t]here was a red sign that was attached to the lock that would have sounded the alarm if the door was locked properly," and that "[t]he alarm box was under the lock, but there was no battery inside the alarm box."
Ramos similarly testified, at his deposition, that he observed that the lock on the [*7]roof door was broken, that someone had been "messing around" with the lock because it had only two screws on it and there were too many holes, and that the alarm box was not connected (Id. at 48). He also testified that it looked like the lock had been taken out, and was not put back in the right place (Id. at 48).
Ramos' deposition testimony, however, does not substantiate plaintiff's claim that the lock was broken prior to the incident. Ramos' testimony that the locking mechanism was broken is limited to what he observed two days after the incident. There is no evidence that the roof door lock mechanism was not working prior to or at the time of the incident. The only evidence of the condition of the roof lock prior to the incident is the deposition testimony of Rivera, who, as set forth above, testified that he checked the lock weekly, that he checked it two days prior to the incident, and that the lock mechanism was not broken before plaintiff was found in the rear courtyard (Rivera's Dep. Transcript at 20, 24-25, 78). While Rivera further testified, at his deposition, that when he inspected the roof following plaintiff's fall, the roof door was open, the alarm battery was dead, and the locking mechanism was found to be jammed and broken, this inspection took place after the incident, and only after the police and others had been up on the roof (Id. at 19, 33, 80).
Plaintiff, in arguing that he was able to gain access to the roof, also relies upon his own deposition testimony, wherein he testified that prior to his accident, he never tried to open the door to the roof, but he believed it was always open because he observed that it was ajar and that there was air coming through the door (Plaintiff's Dep. Transcript at 44-45). In addition, plaintiff has submitted an invoice dated October 9, 2009, a year and a half after the accident, showing that a new lock was sold to St. Nicholas and installed at the building, which, under the description of the lock, states that it was to be supplied and installed on the roof door "for people not to go on [the] roof." Rivera, however, explained that the lock was replaced after the accident because the lock had been forced in and became jammed (Rivera's Dep. Transcript at 22).
Plaintiff argues that the alarm was negligently maintained because it did not go off and, therefore, no one knew that he was on the roof at the time that he allegedly went up on the roof and fell. Plaintiff claims that if the alarm had sounded, Rivera would have heard the alarm and investigated the circumstances of his presence on the roof. However, such argument is unavailing since it is speculative as to whether Rivera would have heard the alarm and whether he would have been able to prevent plaintiff's accident even if an alarm had sounded. Indeed, Rivera testified that he could not hear the alarm from his apartment, and that it could only be heard in the stairs (Id. at 25). Thus, contrary to plaintiff's contention, there is no evidence connecting any alleged failure to maintain the lock and alarm to his fall (see Rivera v Demarco, 21 Misc 3d 1109[A], 2008 NY Slip Op 52024[U] [Sup Ct, Kings County 2008]).
Moreover, there is no duty on the part of a landlord to prevent access to the roof. To the contrary, Multiple Dwelling Law § 104 (1), in pertinent part, provides as follows: [*8]
"1. Every stair . . . required by this chapter to extend to the level of the roof . . . shall extend to and through a fireproof bulkhead or other fireproof enclosure in such roof . . . Such bulkhead or enclosure shall give unobstructed access at all times to such roof . . . by means of a fireproof door and door assembly with the door self-closing. Such a door shall never be self-locking and shall be fastened on the inside by movable bolts, hooks or a lock which does not require a key to open from the inside of the dwelling . . ."
Thus, pursuant to this statutory requirement, a landlord is prohibited from securing a roof door such that it cannot be opened from the inside (see Multiple Dwelling Law § 104 [1]; Banner v New York City Hous. Auth., 94 AD3d 666, 667 [1st Dept 2012]). Indeed, Ramos acknowledged, at his deposition, that there are fire code provisions which require that the door cannot be locked and mandate that if you push the alarm bar, the door must open easily, sounding an audible alarm so that in an emergency, a person can get access to the roof and others will be alerted to the emergency (Ramos' Dep. Transcript at 57-58). Ramos explained that if you push the bar, it will open the door (Id. at 51). According to Ramos, the lock and alarm mechanism, if properly functioning, permitted access from the inside of the building to the roof by simply pushing the bar handle, which, in turn, would unlock the door and sound an alarm (Id. at 50-51, 54, 57). Rivera similarly testified, at his deposition, that the door to the roof was an emergency fire door exit, and when you push the lever, the alarm goes on and the door opens at the same time (Rivera's Dep. Transcript at 34, 77). The affidavit of Ramos and the deposition of both Ramos and Rivera establish that defendant was required to keep the door to the roof unlocked for fire safety purposes (see Multiple Dwelling Law § 104; Banner, 94 AD3d at 666), and defendants do not dispute that access to the roof was available on April 6, 2008.
Therefore, plaintiff's claim of liability cannot be predicated upon the fact that he was able to gain access to the roof since it is undisputed that he accessed it from inside of the building, and defendants were required to permit roof access from inside the building for fire safety purposes pursuant to Multiple Dwelling Law § 104 (1). There is no evidence that defendants in any manner breached a duty owed to plaintiff which caused plaintiff's injuries since, contrary to plaintiff's argument, defendants did not have a duty to prevent plaintiff's access to the roof. Moreover, the fact that plaintiff was able to access and be on the roof did not proximately cause his injuries since the mere gaining of access to the roof, by itself, did not cause plaintiff to fall and suffer the injuries sustained by him.
Plaintiff also purports to argue that there are issues of fact as to criminal activity in the building. "[A] landowner has a duty to exercise reasonable care in maintaining [its] own property in a reasonably safe condition under the circumstances" (Banner, 94 AD3d at 667; see also Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]; Kush v City of Buffalo, 59 NY2d 26, 29-30 [1983]). This duty includes an obligation "to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal [*9]conduct by a third person" (Mason v U.E.S.S. Leasing Corp., 96 NY2d 875, 878 [2001]; see also Jacqueline S. v City of New York, 81 NY2d 288, 293-294 [1993], rearg denied 82 NY2d 749 [1993]; Batista v City of New York,AD3d, 2013 NY Slip Op 05502, *2 [1st Dept 2013]; Banner, 94 AD3d at 667). "However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so" (Jean v Wright, 82 AD3d 1163, 1164 [2011], lv denied 17 NY3d 704 [2011]; see also Banner, 94 AD3d at 667).
Plaintiff (who, as noted above, is not a tenant of the building) contends that there is a history of illegal drug activity in the building and on the roof. He points to Rivera's affidavit, wherein Rivera stated that two days after the accident, he went up to the roof and observed crack containers on the ground and empty "dime bags" which hold drugs, and this indicated to him that this was a "hang out place." Plaintiff also points to Ramos' deposition testimony that two days after plaintiff's accident, he noticed a lot of containers of crack and tobacco material on the floor which indicated to him that people had been "smoking weed up there" (Ramos' Dep. Transcript at 45-46). As noted above, however, Ramos made these observations after plaintiff's accident, and, in any event, any alleged drug use on the roof does not provide evidence which is probative on the issue of how or why plaintiff fell off the roof.
Plaintiff, in his affidavit submitted in opposition to this motion, also now states that he has observed drug use and people hanging out in the staircase and on the roof. However, this is inconsistent with his prior deposition testimony that he never saw anyone on the roof because he never went up on the roof before his accident (Plaintiff's Dep. Transcript at 35, 42). In fact, plaintiff specifically testified that he was not aware of any crime in the building before the day of his accident (Id. at 39). Therefore, this statement by plaintiff in his recent affidavit appears to be contrived to create a feigned issue of fact designed to avoid the consequences of his earlier deposition testimony, and is insufficient to defeat defendants' motion (see Bolde, 70 AD3d at 618).
Plaintiff has produced no actual admissible evidence of any prior criminal activity in the building or evidence of any intruders. Thus, plaintiff has failed to demonstrate that a material issue of fact exists as to whether defendants had notice of the likelihood of criminal intrusions or criminal activities that posed a threat to his safety or could result in him being thrown off the roof.
Moreover, plaintiff has not submitted any evidence that his alleged fall from the roof was the result of any criminal activity at the building. Plaintiff has submitted no evidence that he was the victim of an assailant or that any assailant was an intruder, as opposed to a resident of the building who would have had access to the roof despite any amount of security that defendants could have provided to keep intruders out (see Whiteside v New York City Hous. Auth., 248 AD2d 461, 462 [2d Dept 1998], lv denied 92 NY2d 808 [1998]). As such, any claim that plaintiff's injury was caused by a criminal attack based on inadequate security must fail as a matter of law (see Burgos v Aqueduct [*10]Realty Corp., 92 NY2d 544, 550-551 [1998]). Consequently, to permit a jury to consider this issue would result in pure speculation.
Thus, inasmuch as defendants have established their entitlement to judgment as a matter of law by demonstrating, prima facie, that a jury would have to speculate as to the cause of plaintiff's fall and plaintiff has failed to raise a triable issue of fact, summary judgment dismissing plaintiff's complaint as against defendants must be granted (see CPLR 3212 [b]; Aguilar, 80 AD3d at 545; Martone v Shields, 71 AD3d 840, 841 [2d Dept 2010]; Denicola v Costello, 44 AD3d 990, 990 [2d Dept 2007]; Birman v Birman, 8 AD3d 219, 219-220 [2d Dept 2004]).
CONCLUSION
Accordingly, defendants' motion for summary judgment dismissing plaintiff's
complaint as against them is granted.
This constitutes the decision, order, and judgment of the court.
E N T E R,
J. S. C.
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