LIEVANO v. Oliver Bivins, et al., Defendants. (1999)

Order, Supreme Court, New York County (Beverly Cohen, J.), entered February 24, 1999, which, in an action for personal injuries sustained in a fall on a staircase in defendant-appellant's premises, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

 An issue of fact as to whether plaintiff's fall was proximately caused by defectively designed staircase handrails is raised by plaintiff's statement that when she felt she was about to fall she tried to hold onto something but found nothing (compare, Lynn v. Lynn, 216 A.D.2d 194, 628 N.Y.S.2d 667), and the unchallenged statement of her civil engineer that the low positioning of the handrails on the staircase was a significant and dangerous departure from accepted standards.   Although the Building Code provision invoked by the civil engineer may not be applicable to defendant's pre-Code building, at least in the present context the Code is relevant on the issue of safety standards (cf., Matter of Allstate Ins. Co. [Stolarz], 81 N.Y.2d 219, 224, 597 N.Y.S.2d 904, 613 N.E.2d 936), particularly absent proof from defendant that the staircase was ever in conformity with any preexisting standards.   Nor should the complaint be dismissed simply because particularized notice of this low-handrail theory was not given until plaintiff's attorney served his expert witness notice (cf., Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 327, 508 N.Y.S.2d 923, 501 N.E.2d 572), which, we note, was some three months before defendant made the instant motion.

MEMORANDUM DECISION.