Sampson v Spillane

[*1] Sampson v Spillane 2015 NY Slip Op 51993(U) Decided on August 31, 2015 Supreme Court, Greene County Fisher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2015
Supreme Court, Greene County

Shelly Sampson, Plaintiff,

against

Brendan Spillane, Defendant.



13-1174



Brett Peter Linn, Esq.

Counsel for Plaintiff

Sobo & Sobo, L.L.P.

1 Dolson Avenue

Middletown, New York 10940

Jonathan H. Bard, Esq.

Counsel for Defendant

Barclay Damon, LLP

80 State Street

Albany, New York 12207-2543
Lisa M. Fisher, J.

This premises liability action arises from the personal injuries sustained by Plaintiff Shelly Sampson on July 27, 2013 outside the one-family home she was renting at 46 Longwood Drive, in the Town of Athens and County of Greene. The property was owned by Defendant Brendan Spillane and had an attached, upper level deck. There was only one way on and off the deck through a door into the house. The door had a locking mechanism on the inside, and a keyhole to unlock it from the outside.

On the morning of the date of the incident, Plaintiff went onto the deck to eat breakfast and was subsequently locked out. She was never given a key to the door, nor did she ask for one, and she had been locked out before but she had not requested any repairs to the door. She banged on the door and house siding to wake up the other occupants in the home but no one answered.

She moved a chair to the side of the deck railing, hopped over the railing, and began to lower herself down to the ground. She was holding onto the spindles, which are vertical planks of wood in between the horizontal top and bottom of the railings; these are not the support beams for the railings. Plaintiff testified the spindles and railing felt secure, and that the railing was "not going anywhere." She held one spindle in each hand as she began to lower herself down with her feet dangling towards the ground. The railing moved or shifted and the spindles broke off the deck dropping her to the ground causing personal injury.

Originally, the deck had an exterior stairway leading from the deck down to the ground. According to Defendant, this was removed in or around 2009 due to an erosion issue. He consulted with a company and "we just made a determination let's just — we didn't need the stairs, let's just remove them." He testified that the company did not influence his decision—it was his decision to remove the stairs. He did not check with any town ordinances or a building inspector to see if it was permissible to remove the stairs.

Now Defendant moves for summary judgment, which Plaintiff opposes. Both submit the expert affidavits of professional engineers. While the parties generally agree to the facts, the parties raise multiple arguments and issues over liability. Truly, the only issue the Court sees is whether Defendant was obligated to maintain a means of egress from the deck to the public way, and whether the existing means was proper to achieve this function. Plaintiff contends that Defendant was obligated to maintain a means of egress from the deck and did not have any on the date of the accident. Plaintiff cites codes including the fire code which allegedly required two means of escape per floor and the second floor only had one; the second means of escape was the deck stairs which were removed. Plaintiff also contends that Defendant was required to get a building permit, failed to do so, and would have been denied and told the stairs were required by the building code. Defendant claims that the codes cited by Plaintiff do not apply because of an exemption or are otherwise the wrong codes. Further, Defendant argues that Plaintiff's expert is unqualified to testify in this matter.

It has been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]; Sternbach v Cornell Univ., 162 AD2d 922, 923 [3d Dept 1990].) The Court of Appeals has stated that "[n]eglience cases by their very nature do not usually lend themselves to summary judgment, since often . . . the very question of negligence is itself a question for jury determination." (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979].)

It is equally well established that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]; accord Hollis v Charlew Const. Co., Inc., 302 AD2d 700 [3d Dept 2003].) Such "burden may not be met by pointing to gaps in plaintiff's proof." (DiBartolomeo v St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept 2010]; accord Dow v Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [3d Dept 2007].)

"To prevail on his motion for summary judgment, defendant [is] required to demonstrate that he maintained his property in a reasonably safe condition and that he neither created nor had actual or constructive notice of the allegedly dangerous condition existing thereon." (Feuerherm v Grodinsky, 124 AD3d 1189, 1190 [3d Dept 2015]; accord McMullin v Martin's Food of S. Burlington, Inc., 122 AD3d 1103, 1104 [3d Dept 2014].) Establishing constructive notice against a defendant "requires a showing that the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit defendant [ ] to discover it and take corrective action." (Tate v Golub Properties, Inc., 103 AD3d 1080, 1081 [3d Dept 2013]; see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; see also Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 [2005].)

Here, Defendant established entitlement to summary judgment. He argues that he did not create or have actual notice of the alleged dangerous condition as Plaintiff did not once complain [*2]to him or his agent (the realtor) of the railing, spindles, or the door's lock. Defendant also established he did not have constructive notice of the dangerous condition as Plaintiff's own testimony indicated there were no defects in the railing, thus a reasonable inspection would have also failed to reveal the defect complained of because the defect was not visible and apparent.

Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 NY2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].) "[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination." (Swartout v Consolidated Rail Corp., 294 AD2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]; Greco v Boyce, 262 AD2d 734, 734 [3d Dept 1999] [holding courts are "to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists."].)

Here, at the onset the Court notes that Plaintiff is unable to rebut the contentions that the railings or spindles constituted a dangerous condition. Plaintiff's own testimony established that she checked both the railing then the spindles and believed they were secure and "not going anywhere" prior to her ill-fated descend. Thus, the Court finds if Plaintiff's inspection of the railing and spindles deemed them in reasonably safe repair—enough to risk her well-being on them—the railing and spindles could not have been in the disrepair and defective state she alleges them to be in her Complaint and Verified Bill of Particulars. At the very least, any defects were not visible or apparent.

Therefore, the only avenue of liability is whether Defendant was required by law to have a means of egress from the deck, and whether the existing means was proper. If Defendant had no duty to do so, Plaintiff's claim fails entirely. If Defendant did have a duty to maintain a means of egress, the Court finds Plaintiff's claim survives summary judgment despite Defendant's proximate cause argument. Contrary to such argument, the Court believes reasonable minds could differ as to whether it was reasonably foreseeable for someone who was locked out on a deck with no means to escape would attempt to lower herself down to the ground, or whether a reasonable person would continue to bang on the door and house siding, or devise some other method of alerting others or escaping. This is a question of fact for a jury to determine.

Initially, Defendant's claim that Plaintiff's expert is unqualified to render an opinion on the subject matters contained in his affidavit and accompanying report is without merit. Defendant's cites cases where Plaintiff's expert was found to not be qualified to render an opinion as to a design defect, as a "water safety expert," or applying OSHA regulations incorrectly. But here, Plaintiff's expert is literally applying what he has done for more than four decades of his career. Even though Defendant points to a few lines on his resume wherein Plaintiff's expert worked on automobile or mechanical matters, Defendant is silent to mention the expert's experience in safety analysis for the residential construction of decks and familiarity with the particular codes affecting methods of construction and maintenance of residential decks. Oddly, Defendant's expert actually lacks any experience—at least purported in his affidavit or CV—relating to residential decks. In fact, Defendant's expert's CV does not mention any [*3]experience on residential property, but rather on commercial and industrial projects. Additionally, a significant if not exclusive portion of Defendant's expert's career has focused on structural engineering as it relates to seismic activity—clearly not an issue in this case. As such, the Court has reviewed both experts and finds Plaintiff's expert is as qualified—if not more qualified—than Defendant's expert regarding residential building codes, particularly those involving decks.

Plaintiff's expert opined the home complied with the applicable building codes when it was constructed in 2004, including the deck and stairs. However, when the deck stairs were removed in 2009, such removal and/or demolition did not comply with the applicable codes enacted at that time. He opined the applicable codes were the Residential Code of New York State (hereinafter "Residential Code"), the Fire Code of New York State (hereinafter "Fire Code"), and the Property Maintenance Code of New York State (hereinafter "Property Maintenance Code"); all were adopted by the Town of Athens. The proper year for each code is the 2007 version.

Specifically, Plaintiff argues Defendant was required under Chapter 92 of the Town of Athens Code to obtain a building permit and Defendant would have been denied this building permit because removal of the deck steps would be a violation of the 2007 Property Maintenance Code and 2007 Residential Code. Defendant's expert argues that "[a] building permit would not have been required in the ordinary course to remove the exterior stairs because the stairs were not required by any code . . . . Repairs also do not normally require a permit." Town of Athens Code Section 92-4 governs building codes, and subdivision (A) requires a building permit "for any work which . . . include[es] . . . the . . . removal, relocation or demolition of any building or structure, or any portion thereof . . . ."Section (B) (12) (b) provides exemptions to needing a building permit, which include repairs unless the repairs involve "[t]he removal or change of any required means of egress or the rearrangement of parts of a structure in a manner which affects egress." Therefore, Defendant's expert is wrong on both accounts and the Court finds a building permit was required.

However, to be successful in defending this motion Plaintiff establish that an applicable code required a separate means of egress from the deck. Plaintiff's expert cites to Section 702 of the Property Code which provides under 702.1 that "[a] safe, continuous and unobstructed path of travel shall be provided from any point in a building or structure to the public way." Section 202 defines a "public way" as being "[a]ny street, alley or similar parcel of land essentially unobstructed from the ground to the sky, which is deeded, dedicated or otherwise permanently appropriated to the public for public use."

The relevant inquiry here is whether a deck is considered a "structure" which would require a "safe, continuous and unobstructed path of travel[.]" A "structure" is defined very broadly under Section 202 as "[t]hat which is built or constructed or a portion thereof." More narrowly, Section 304 governs "exterior structures" and contains sections related to decks; this is the only area in the Property Code which the Court found decks to be referenced. First, Section 304.2 includes balconies and decks in its "protective treatment" requirement. Next, Section 304.10 also provides various structural requirements for decks. As such, given the language of the Property Code, the Court considers a deck to be a "structure."

The only way off of the deck—the means of egress—was through the door leading into the building. Section 702.3 governs locked doors, and provides that "[a]ll means of egress doors shall be readily openable from the side from which egress is to be made without the need for [*4]keys, special knowledge or effort, except where the door hardware conforms to that permitted by the [Fire Code]." Here, it is uncontested that the door leading back into the house required a key. It is immaterial under the Property Code that 1) Plaintiff never received nor requested the key, and 2) that the door would allegedly randomly lock and Plaintiff never told Defendant about this issue. This Section of the Property Code simply requires the means of egress to open without a key, which the door clearly required the use of a key at least some of the time. This amounted to a code violation.

The only defense to Section 702 by Defendant's expert is that it "does not apply because the door to the deck is not a required means of egress to escape from the house." However, this misstates Section 702.1 which requires "[a] safe, continuous and unobstructed path of travel . . . from any point in a . . . structure to the public way." Thus, Section 702.1 requires a safe and unobstructed path from the deck to the public way—which means it does apply contrary to Defendant's expert's conclusory statement. Defendant's attorney affirmation does not once mention Section 702, and Defendant's reply memorandum of law only attack's the competency of Plaintiff's expert which was a misplaced approach in handling this motion.

For this reason alone, Defendant's motion for summary judgment must be denied. However, the parties also make several other claims and arguments which the Court will still address to limit the issues at trial.

Plaintiff's expert cites to the 2002 version of the Fire Code under Section 1005.2.1, which requires every floor to be provided with the minimum number of approved independent exits as required by the annexed table, which requires the subject property to have two exits per floor. However, according to Plaintiff this is the wrong year of the code—it should be the 2007 version. In the 2007 version, there is no 1005.2.1. The Court believes that Section 1018 of the 2007 Fire Code is provision related to 1005.2.1 which also requires two exits per story.

Defendant argues this section does not apply, and points to Section 1001.1 which provides an exception to "one- and two-family dwellings . . . not more than three stories above grade plane in height with a separate means of egress and their accessory structures shall comply with the [Residential Code]." Thus, for the exception to apply the one or two family dwelling must 1) not be more than three stories, 2) the dwelling must have a separate means of egress, and 3) the accessory buildings must comply with the Residential Code. Because the language of the Code uses "and," all of the conditions must be met. First, there is no testimony as to the height of the building, but photographs appear that the building is three stories. Second, the dwelling does has a separate means of egress, i.e., the stairs inside. A "dwelling" is defined as "[a]ny building that contains one or two dwelling units [FN1] used, intended, or designed . . . to be occupied, or that are occupied for living purposes[,]" (Residential Code R. 302), thus the deck is not part of the "dwelling" and does not need a separate means of access under the code. Third, an "accessory structure" is defined in the Residential Code under R. 202 as "a building, the use of which is incidental to that of the main building[,]" which the deck is not "a building." As such, the exception applies and the Fire Code section requiring two exits per story does not apply.

Plaintiff also cites to R. 310.1 of the Residential Code, which requires emergency escape and [*5]rescue openings. Plaintiff's expert affidavit provides in quoted language that "[s]uch opening shall open directly into a public street, public alley, yard, or court." However, the Court has reviewed R. 310.1 and does not find that quote or requirement. Rather, this section requires "[b]asements with habitable space and every sleeping room . . ." to have an openable emergency exit and rescue opening, which a deck is not a basement or sleeping room. Plaintiff's attempt to bootstrap this Rule that there is an emergency escape for a bedroom above the deck is without merit, as what Plaintiff quoted is not present.

Plaintiff also claims a violation of Residential Code R. 311.4, which requires "[n]ot less than one exit door conforming to this section shall be provided for each dwelling unit." As noted in footnote one, a dwelling unit is defined as an area containing permanent provisions for living, sleeping, eating, cooking and sanitation—a deck is none of these and is thus not a "dwelling unit." Further, R. 311.4 also provides that "[t]he required exit door shall provide for direct access from the habitable portions of the dwelling to the exterior without requiring travel through a garage." As noted above, the deck is not a "dwelling" because a deck is not a building and does not have one or more dwelling units. Further, a deck is not a "habitable" portion, space or level as Plaintiff contends, as a "habitable space" is defined as "[a] space in a building for living, sleeping, eating or cooking . . ." (See Residential Code R. 202.) A deck is not in a building.

As such, the Court finds that Plaintiff has raised a question of fact as to whether Defendant's violation of Property Code Section 702 was a proximate cause of this accident. The Court instructs the parties shall continue forward in this matter based on the findings herein, including the dismissal of Plaintiff's claim that the railing was defective and that the Fire Code does not apply.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Defendant's motion for summary judgment is DENIED, and all other relief requested therein is denied in its entirety, but the parties are bound by the findings included in this Decision and Order.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.

DATED: August 31, 2015E N T E R :

Catskill, New York

_______________________________

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

Notice of motion dated April 15, 2015; attorney affirmation of Jonathan H. Bard, Esq., with annexed exhibits, dated April 15, 2015; Defendant's memorandum of law; affidavit of Chet J. Zaremba, P.E., with annexed exhibits, dated March 9, 2015;

Affirmation and legal argument in opposition to Defendant's summary judgment motion, of Brett Peter Linn, Esq., with annexed exhibits, dated June 3, 2015; affidavit of Alden P. Gaudreau, Ed.D., P.E., with annexed exhibits, dated June 2, 2015; and

Reply affirmation of Jonathan H. Bard, Esq., dated June 15, 2015; reply affidavit of Chet J. Zaremba, P.E., with annexed exhibits, dated June 17, 2015; Defendant's reply memorandum of law. Footnotes

Footnote 1:A dwelling unit is defined as "[a] single unit providing complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation." (See Residential Code R. 202.)