LaPADULA v. GROCERY CORP (2007)

Order, Supreme Court, New York County (Carol Edmead, J.), entered July 10, 2006, which denied defendants' respective motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Plaintiff was allegedly injured when she stepped off a front-door step measuring 9 inches in height, and thus exceeding the 7 1/212-inch maximum height differential specified in the applicable Building Code provision (see Administrative Code of the City of N.Y. § 27-371[h] ).  Given the evidence of a significant structural or design defect in violation of a specific code safety provision, a triable issue exists as to whether defendant landlord 46 Estates Corp., which reserved the right to re-enter the premises and make repairs, had constructive notice of the alleged hazard (cf. McDonald v. Riverbay Corp., 308 A.D.2d 345, 764 N.Y.S.2d 185 [2003];  Johnson v. Urena Serv. Ctr., 227 A.D.2d 325, 642 N.Y.S.2d 897 [1996], lv. denied 88 N.Y.2d 814, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [1996] ).   There is also a triable issue as to whether the alleged defect was a substantial factor in causing plaintiff's injury in light of plaintiff's sworn statements that the height of the step-off was unexpected and caused her foot not to come down “flat” on the sidewalk, and the affidavit of plaintiff's expert engineer, stating that the height differential in excess of that permitted by the Code constituted an unreasonably hazardous condition.

 Issues of fact exist as well as to whether defendant commercial tenant J.A.A. Grocery Corp. may be answerable for the alleged defect given the photographic evidence and the testimony of the tenant's principal indicating that the tenant's renovations of the subject premises may have affected the height of the step-off.   There are also triable issues as to whether defendant tenant, even if it were not responsible for creating the defect, may be held responsible for failing to remediate the defect on a constructive notice theory (see Putnam v. Stout, 38 N.Y.2d 607, 381 N.Y.S.2d 848, 345 N.E.2d 319 [1976];  Zito v. 241 Church St., 223 A.D.2d 353, 355-356, 636 N.Y.S.2d 40 [1996] ).   We note in this connection that the step was structural, in open view, and, at least arguably, could not have been overlooked or avoided since it was located at the Grocery's front door, and that the claimed excess height differential of 1 1/212 inches represents a 20% increase over the 7 1/212-inch differential specified in Administrative Code § 27-371(h).