WELCH v. FATHER HOUSE OF ROCHESTER (2025)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this action to recover damages for injuries plaintiff sustained when she fell while descending stairs inside defendant's church, defendant appeals from an order denying its motion for summary judgment dismissing the complaint. We affirm.

Defendant failed to meet its initial burden on the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]). Although defendant contends that the stairs did not constitute a dangerous condition, the determination of such an issue “depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” (Hayes v. Texas Roadhouse Holdings, LLC, 100 A.D.3d 1532, 1533, 954 N.Y.S.2d 348 [4th Dept. 2012] [internal quotation marks omitted]). Defendant submitted the report of plaintiff's expert, who opined that the stairs were inherently dangerous and were not in compliance with applicable building codes for permanent stairways. Defendant also submitted the affidavit of its expert, who opined that the codes cited by plaintiff's expert were inapplicable and that the stairs were in compliance with codes applicable to bleacher stairs. Thus, defendant's own submissions raise an issue of fact as to which section of the code is applicable to the stairs where plaintiff fell. It will be for a jury to decide whether defendant violated the relevant section of the code (see Hartnett v. Zuchowski, 175 A.D.3d 1831, 1832, 107 N.Y.S.3d 751 [4th Dept. 2019]; see also Grayson v. Hall, 31 A.D.3d 606, 607, 817 N.Y.S.2d 904 [2d Dept. 2006]; Romanowski v. Yahr, 5 A.D.3d 985, 986, 773 N.Y.S.2d 922 [4th Dept. 2004]). In any event, “[e]vidence of a defendant's compliance with industry standards, ․ does not establish” that defendant was not negligent (Hayes, 100 A.D.3d at 1532, 954 N.Y.S.2d 348; see Baity v. General Elec. Co., 86 A.D.3d 948, 950-951, 927 N.Y.S.2d 492 [4th Dept. 2011]), and here defendant failed to establish as a matter of law that the stairs were not inherently dangerous (see Hayes, 100 A.D.3d at 1533, 954 N.Y.S.2d 348; Powers v. St. Bernadette's R.C. Church, 309 A.D.2d 1219, 1219, 765 N.Y.S.2d 102 [4th Dept. 2003]).

Defendant also failed to establish that the alleged defect was not a proximate cause of plaintiff's injuries as a matter of law. Although plaintiff may have been comparatively negligent in failing to observe the step or in believing that she had reached the floor when she was still on the stairs, we conclude that, contrary to its contention, defendant failed to establish that plaintiff fell solely due to her own negligence (see Powers, 309 A.D.2d at 1219-1220, 765 N.Y.S.2d 102). Finally, we note that “defendant improperly contended for the first time in its reply papers that it did not” have notice of the dangerous condition, and that contention was therefore not properly before Supreme Court (Spacht v. County of Chautauqua, 133 A.D.3d 1335, 1336, 20 N.Y.S.3d 806 [4th Dept. 2015]; see Azzopardi v. American Blower Corp., 192 A.D.2d 453, 454, 596 N.Y.S.2d 404 [1st Dept. 1993]).

In light of defendant's failure to demonstrate its prima facie entitlement to judgment as a matter of law, the court properly denied the motion regardless of the sufficiency of plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]).