Jurdine v Cotterel

[*1] Jurdine v Cotterel 2013 NY Slip Op 52293(U) Decided on December 11, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2013
Supreme Court, Kings County

Duke Jurdine, Plaintiff,

against

Bentley Cotterel, Defendant.



25237/2010



Plaintiff's Attorney: Wale Mosaku, PC; 25 Bond Street; Brooklyn, NY 11210

Defendant's Attorney: Baron Law Firm, PLLC; 166 Laurel Rd., Suite 203; East Northport, NY 11731

David I. Schmidt, J.

Defendant Bentley Cotterel moves for an order, pursuant to CPLR 3212 (b), dismissing the complaint of plaintiff on liability.

This is an action by plaintiff/tenant Duke Jurdine to recover damages from defendant/out-of possession landlord for personal injuries he allegedly sustained on December 24, 2008 at approximately 7:00 am, when he slipped and fell on an icy condition while attempting to descend an exterior stairway from the rental premises at 3116 Snyder Avenue, Brooklyn, NY.

In response to defendant's demand for a bill of particulars, asking, among other things, how defendant was negligent, plaintiff responded that: (i) there was an accumulation of ice and snow at the front entrance of the subject premises resulting from a downpour of ice and snow from the previous day(s) and/or hour(s) and defendant had actual and constructive notice of these conditions because the weather conditions causing said accumulation had ended at least four hours prior to plaintiff's accident; and (ii) in violation of various codes, defendant failed to provide handrails and/or adequate handrails for the exterior stairway. See affirmation of Jeffrey T. Baron, dated May 23, 2013 (Baron aff.), Ex. E, ¶¶ 3, 6.

Defendant now moves for dismissal of the complaint arguing that there is no basis for a finding of liability because: (i) there was a storm in progress at the time of the accident; and (ii) the subject premises was constructed prior to the effective date of any of the code provisions cited by plaintiff, and therefore, there was no requirement that the subject premises have handrails on the stairway where the accident occurred.

For the following reasons, the motion is granted.

I.Relevant Testimony [*2]

A.Plaintiff's Deposition

At his EBT (Barron aff., Ex. C), plaintiff testified that he had been a full-time tenant at the subject premises from 2005 through the date of the incident. He worked as a production supervisor Monday through Friday from 8:00 am to 4:00 pm.

Plaintiff testified that, at approximately 7:00 am on the morning of the accident, it was "drizzling" and "a little rain" was falling. He was going to his job and it was the first time that he left the premises that morning. As he stood in the doorway, plaintiff observed snow on the steps leading down to the street.[FN1] Plaintiff testified that as he stepped out of the door, he placed his right foot on the First Landing while his left leg remained inside the doorway. Plaintiff stated that he was trying to reach for the masonry wall at the right side of the steps for support when his right foot slipped on ice that had accumulated on the First Landing, causing him to lose his balance and roll down the stairs to the sidewalk. Plaintiff further testified that there was no handrails on the steps at the time of the accident.

Plaintiff had worked the day before the accident and returned home from work around 4:50 pm or 5:00 pm the night before. Although he could not recall what the weather was like when he returned home, he acknowledged that there was no snow, ice, or other wetness on the stairs at that time, and that he had no difficulty climbing the stairs. Plaintiff did not go back outside before the accident the following morning.

B.Defendant's Testimony [FN2]

At his EBT (Barron aff., Ex. D), defendant testified that he was the landlord of the subject premises on the date of the accident and had purchased the property in the Fall of 2003. He testified that he visited the premises on a daily basis to make sure everything was okay. From 2006 through the date of the accident, he employed a man named Sheldon Chambers for maintenance at the premises, including shoveling, cleaning, and other work that would normally be done by a handyman. Defendant testified that Mr. Chambers went to the property on a daily basis, and that his responsibilities included inspecting the stairway at issue and if there was snow, removing it and salting the area. Defendant also testified that his standing instructions to Mr. Chambers following a snowfall was to "inspect the sidewalk and the staircase and if there is any snow he should remove it and put salt on those areas." Id., at 45. As well, defendant instructed Mr. Chambers to inspect the subject premises "as often as possible when there is a snowstorm [*3]and there is snow." Id. Although Mr. Chambers worked from "Monday through Friday," defendant testified that "I also would call him if there is a situation as needed. On a weekends [sic] if there is a snowfall or any emergency, I call him and he responds. The same thing like at night and I pay him extra." Id., at 46-47.

C.Defendant's Affidavit

In an affidavit submitted in support of the instant motion, defendant avers that he owned the subject premises since the Fall of 2003; the property was constructed around 1910 and "has never undergone alterations in any 12-month period that cost 30% or more of the buildings value." See affidavit of Bentley Cotterel, sworn to March 23, 2013 (Cotterel aff.), ¶¶ 2-3.

D.Report of Forensic Meteorologist

Defendant retained Howard Altschule, a certified forensic meteorologist to perform an in-depth weather analysis and forensic weather investigation in the vicinity of the subject premises in order to determine what the weather conditions were leading up to and including the time of the incident. See Baron aff., Ex. H. After describing his methodology, which included an examination of certified records from the National Climatic Data Center, Mr. Altschule affirmed, based upon his investigation and analysis, that:

1.No precipitation fell on December 22-23, 2008. Further, "the air temperature remained well below freezing" from 9:51 pm on December 21, 2008 through 5:00 am on December 24, 2008."

2.On December 24, 2008, a winter storm caused occasional light freezing rain from 3:07 am through 7:00 am, the time of plaintiff's accident. 3.Certified records from the National Climatic Data Center showed that the temperature just began to climb above freezing around 7:00 am, at which time it was approximately 33-34 degrees in Central Park; 35 degrees at JFK Airport; and 33 degrees at Newark Airport.

4.There was a sharp cut off between freezing rain and non-freezing rain over Brooklyn, NY, and that the area in which plaintiff's accident occurred was on the "colder side" of this zone, based upon temperature readings and surface observations from the surrounding weather stations. 5.The ground surfaces were still frozen even when the air temperatures began to rise above freezing in the morning, so that the precipitation at the incident location fell as "freezing rain" through approximately 7:00 am, approximately two hours after the air temperature went above freezing. "That is, as the liquid rain drops fell onto the below freezing ground, they turned to ice/glaze and accumulated," at the time and location of the accident.6.At 7:00 am on December 24, 2008, a winter storm was still in progress, light freezing rain was transitioning to plain rain, the air temperature was approximately 34 degrees and approximately 1/10th of an inch of new ice/glaze was present on exposed and untreated surfaces.[*4]

Based on the weather reports and other data, Mr. Altschule concluded that: (i) after two days of no precipitation, a winter storm began at the subject location on December 24, 2008 at 3:07 am and remained in progress through and beyond 11:59 pm, and that (ii) this precipitation was falling as freezing rain up to and including the time of plaintiff's accident at 7:00 am, creating an accumulation of ice/glaze.

E.Defendant's Engineer's Report

Defendant also retained John Urinyi, a licensed Professional Engineer, to conduct an inspection of the premises and provide a sworn report. See Baron aff., Ex. I. In his report, Mr. Urinyi describes the exterior stairway as five steps and a landing (i.e., the Second Landing). Mr. Urinyi measured the Second Landing to be approximately 38 inches long in the direction of travel. He also noted that from the exterior side of the front door there was a continuation of the interior floor for approximately 11½ inches (i.e., the First Landing, the location where plaintiff's right foot slipped). It is Mr. Urinyi's opinion that, due to its position above the Second Landing, this step is technically considered a second flight of stairs.

Based on his review of the certified property card and tax photo, showing that the building was in existence, at least as of October 18, 1917, Mr. Urinyi opined that the front entrance stoop (Second Landing and 5 steps to sidewalk) was "grandfathered" by the New York City Building Code as it was in existence as a legally occupied building prior to the enactment of the Building Code in 1968 and the Building Code of 1938 and, therefore, did not require a railing. He also concluded that the step by the front door (the First Landing), where plaintiff slipped, is considered a second flight of stairs, "albeit only one step," and as such, there was no requirement that it have a railing, even under today's City of New York Building Code. Id., ¶¶ 4-5.

F.Plaintiff's Engineer's Report

In opposition to the motion, plaintiff submits the expert report of Harold Krongelb, a licensed Professional Engineer. See affirmation of Wale Mosaku dated August 8, 2013, Ex. 1. Mr. Krongelb states, based on what appears to be unsupported hearsay, that: "The owner of the home reportedly renovated within the last ten years to convert it to a rooming house. At that time, a building permit should have been obtained from the City of New York Department of Buildings. Among the other requirements attached to that permit would have been a handrail on this stoop. The records at the Department of Buildings do not indicate that a permit was ever obtained for this conversion."

Id., at 9. Further, based on his site examination, Mr. Krongelb concludes that "...the proximate cause of [plaintiff]'s injury is the lack of code required handrails. Had these handrails been present as required by the Building Code, the injuries to [plaintiff] would not have occurred." Id., at 10.

II.Discussion

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible [*5]form. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v Silver, 90 NY2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v Stop & Shop, 65 NY2d 625, 626 (1985).

A.Storm in Progress

It is well-settled that a landowner owes a duty of reasonable care under the circumstances to prevent injuries to third parties from dangerous conditions on their property. Basso v Miller, 40 NY2d 233, 241 (1976). Additionally, in order to establish a prima facie case of negligence in a slip and fall case, the plaintiff must demonstrate that the defendant created the dangerous condition that caused the accident or the defendant had actual or constructive notice of that condition and failed to remedy it within a reasonable time. Gordon v American Museum of Natural History, 67 NY2d 836, 837-38 (2d Dept 1998).

However, landowners may be excused from liability altogether for hazardous conditions caused by an ongoing storm. See Solazzo v New York City Transit Auth., 6 NY3d 734, 735 (2005). This so-called "storm in progress" doctrine has developed through the common law in recognition of the practical difficulties that landowners face in remedying storm-created hazards on their premises. Thus, as explained by the Court of Appeals , "[a] property owner will not be held liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter." Solazzo, 6 NY3d at 735.

Defendant here contends that he cannot be held liable for plaintiff's alleged accident because, as established by plaintiff's testimony (i.e., that the steps were dry and clear when he returned home from work on the evening before the accident and that it was raining outside when he slipped, supra), together with the meteorological report of Mr. Altshule (i.e., that a winter storm began at the subject location on December 24, 2008 at 3:07 am and remained in progress up to the time of the incident at 7:00 am, supra), the ice accumulation on which plaintiff slipped had formed from a storm in progress at the time of the accident. As an adequate period of time had not passed following the cessation of the storm to allow defendant an opportunity to ameliorate the hazards caused by the storm, defendant cannot be held liable for plaintiff's injuries. See Dowden v Long Is. R.R., 305 AD2d 631, 631 (2d Dept 2003); Espinell v Dickson, 57 AD3d 252, 253 (1st Dept 2008).

In opposition, plaintiff does not dispute defendant's assertion that there was storm in progress and focuses his arguments instead on whether the stairway itself was defective because it lacked handrails at the time of the accident. Nevertheless, plaintiff devotes a portion of his summary of defendant's "pertinent" deposition testimony to defendant's description of Mr. Chambers' maintenance duties at the subject premises. Plaintiff notes that defendant's instructions to Mr. Chambers regarding a snowfall was to "inspect the sidewalk and the staircase and if there is any snow he should remove it and put salt on those areas." Plaintiff also points to defendant's testimony that he instructed Mr. Chambers to inspect the subject premises "as often as possible when there is a snowstorm and there is snow," and that even on nights or weekends, "if there is a snowfall or any emergency, I call him and he responds." Although plaintiff does not [*6]say as much (indeed, plaintiff makes no argument), plaintiff is implying that the effect of defendant's standing instructions to Mr. Chambers and his 24/7 availability was such that defendant owed plaintiff a duty greater than that which would be ordinarily be required by law.

However, even if the evidence can be read to suggest that defendant generally required Mr. Chambers to remove snow while it was still falling (a higher standard of care than that required by law), it is well-settled that "internal rules and manuals, to the extent they impose a higher standard of care than is imposed by law, are inadmissible to establish a failure to exercise reasonable care." Abraham v Port Auth. of NY & N.J., 29 AD3d 345, 347 (1st Dept 2006) (granting defendant summary judgment and rejecting plaintiff's reliance on defendant's internal manual to establish a breach of the duty of care), citing Rivera v New York City Tr. Auth., 77 NY2d 322, 329 (1991); Crosland v New York City Tr. Auth., 68 NY2d 165, 168-69 (1986).

In short, to the extent that plaintiff's theory of defendant's liability is that defendant had constructive notice of a dangerous condition involving an accumulation of snow or ice on the exterior stairway, defendant is shielded from such liability pursuant to the "storm in progress" doctrine.

B.Defective Stairway/Lack of Handrails

With respect to plaintiff's claim that the lack of handrails contributed to his accident, defendant asserts that any such claim is negated by the fact that there was no requirement for handrails at the subject premises because the building was constructed in 1910. As such, defendant argues that the property was not subject to the requirements imposed by the New York City Building Code (including handrails) under the grandfathering clause of Administrative Code § 27-111. See Isaacs v West 34th Apts. Corp., 36 AD3d 414, 416 (1st Dept 2007).

Defendant also asserts that none of the exceptions to the grandfathering clause are applicable.[FN3] In this regard, defendant maintains that the court can take judicial notice that no permits were ever issued regarding the subject property according to the New York City Department of Buildings website. Without stating the basis of his knowledge, defendant avers in an affidavit that, prior to his purchase of the subject premises in 2003, the building had never undergone alterations in any 12-month period that cost 30% or more of its value. See Cotterel aff., ¶¶ 2-3.

Defendant further argues, relying on his engineer's report, that even if the subject premises was not grandfathered and the current building code applies, the step by the front door (the First Landing) where plaintiff claims to have slipped is considered another set of stairs (due to its position above the Second Landing), "albeit only one step." See Baron aff., Ex. I, at 3, ¶ 4. According to Mr. Urinyi's report, this step did not require a handrail, even under the current code, which only requires a handrail for a flight of stairs with four or more risers. Id., ¶ 5. Thus, even if the current code applied, a handrail would only have been required, at most, for the Second Landing and the steps to the sidewalk below it. Given that plaintiff's testimony was that his left [*7]foot was still in the doorway at the time of his accident (see Baron aff., Ex. C, at 29), it is defendant's contention — and the court agrees — that it would be entirely speculative to conclude that plaintiff would have reached a handrail on the Second Landing in time to prevent his fall, even had one been present. See Bitterman v Grotyohann, 295 AD2d 383, 384 (2d Dept 2002) (mere speculation regarding causation inadequate to sustain a negligence cause of action).

However, at the hearing on the motion, the court raised an issue regarding the basis of defendant's knowledge as to whether any qualifying alterations were performed to the subject premises given the amount of time that had passed (over 90 years) between its construction and its relatively recent purchase by defendant in 2003. See e.g. Mora v Cammeby's Realty Corp., 35 Misc 3d 1225(A), 2012 NY Slip Op 50893(U), *2 (Sup Ct, Kings County 2012), affd 106 AD3d 704 (2d Dept 2013). As a result, the court directed defendant to submit additional proof on the issue of whether, notwithstanding any grandfathering of Building Code provisions, a handrail was required on the First Landing where plaintiff claims he slipped.

In response to this directive, defendant submitted an excerpt of the relevant portion of the Building Code, R.311.5.6. This provision provides that: "Handrails shall be provided on at least one side of each continuous run of treads or flight with four or more risers," and confirms Mr. Urinyi's expert opinion that "there is no requirement in today's Building Code for a railing at the step by the front door as it is only one riser in height. Railings are only required for a flight of stairs that has four (4) or more risers." See Baron aff., Ex. I, at 3, ¶ 5.

In sum, defendant has demonstrated his entitlement to summary judgment based on evidence that there was a storm in progress at the time of the accident and that even under the current code, no handrail was required for the top step (First Landing). As plaintiff has not come forward with any evidence establishing the existence of any material issues of fact that would require a trial, defendant's motion for summary judgment is granted and the action is dismissed.

The foregoing is the decision and order of the court.

Dated: December 11, 2013

ENTER:

______________________J.S.C. Footnotes

Footnote 1: The court will adopt the convention used at plaintiff's deposition to describe the stairway where the accident occurred. The term "First Landing" will be used to describe the top step located immediately outside the front door, which, as the pictures annexed to the motion papers indicate, was at the same level as the area interior to the doorway and was where plaintiff's right foot slipped on an ice accumulation. After the First Landing, which was measured by defendant's expert to continue from the exterior side of the front door for approximately 11½ inches, and continuing in the direction of the street, is another landing, the "Second Landing," approximately 38 inches long. From the Second Landing to the sidewalk is a flight of 5 steps.

Footnote 2: As appears from the transcript, this deposition was not completed due to a conflict between the attorneys over whether defendant's counsel's objections and his instructions to his client not to answer certain questions, were proper.

Footnote 3: If, in any 12-month period, a building's alteration costs exceed 60% of its overall value, the entire building must be made Code-compliant. Administrative Code § 27-115. If the alteration costs expended in the same time frame are between 30% and 60% of the building's value, then only that portion of the building that was altered becomes subject to the Building Code provisions. Administrative Code § 27-116.