HAND v. GILBANK (2002)

 Plaintiff, a tenant in a two-family dwelling owned by defendant, commenced this action to recover damages for injuries she sustained as she attempted to walk up the driveway leading to the rear entrance of the dwelling.   Defendant moved for summary judgment dismissing the complaint.   Supreme Court granted defendant's motion in part, dismissing the claim that plaintiff's injuries resulted from defendant's alleged negligence in failing to remove an accumulation of snow and ice on the driveway.   Contrary to the contention of defendant, the court properly denied his motion to the extent that it sought summary judgment dismissing the claim that plaintiff's injuries resulted from his negligent failure to maintain or repair the driveway surface or to provide a safe means of ingress and egress.  “Defendant[ ] failed to sustain [his] burden of demonstrating [his] entitlement to judgment as a matter of law on the issues whether the premises were negligently maintained in a defective or hazardous condition, whether [he] had [actual or] constructive notice of that alleged defect or hazard, and whether the alleged defect or hazard caused or contributed to plaintiff's injuries” (Gonzalez v. Padin, 299 A.D.2d 954, 954, 749 N.Y.S.2d 765).   Contrary to the further contention of defendant, his alleged violation of the State Uniform Fire Prevention and Building Code (9 NYCRR part 600 et seq.) may be considered as some evidence of negligence (see Hill v. Cartier, 258 A.D.2d 699, 701, 685 N.Y.S.2d 336;  see generally Elliott v. City of New York, 95 N.Y.2d 730, 734, 724 N.Y.S.2d 397, 747 N.E.2d 760).

 We agree with defendant, however, that the court erred in failing to grant his motion to the extent that it sought summary judgment dismissing the claim of negligence premised upon his alleged discrimination against plaintiff, a handicapped person, in violation of the Fair Housing Act (42 USC § 3601 et seq.).   Even assuming, arguendo, that defendant violated the Fair Housing Act by refusing to permit the installation of a ramp, railings or other devices on the property (see § 3604[f][3][A] ), we conclude that the Act was not intended to create “a standard of care in negligence litigation” (Dance v. Town of Southampton, 95 A.D.2d 442, 446, 467 N.Y.S.2d 203).   Thus, the alleged violation of the Fair Housing Act, even if proved, would not constitute negligence (see id. at 445-446, 467 N.Y.S.2d 203).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendant to the extent that it sought summary judgment dismissing the claim of negligence premised upon his alleged discrimination against plaintiff, a handicapped person, in violation of the Fair Housing Act (42 USC § 3601 et seq.) and as modified the order is affirmed without costs.

MEMORANDUM: