Gerard Palionis, Plaintiff–Appellant, v. LLC (2018)

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Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 4, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this case, defendants owed no duty, statutory or otherwise, to plaintiff to provide continuous illumination in the stairway upon which plaintiff slipped during the ongoing blackout resulting from Hurricane Sandy (see e.g. Kopsachilis v. 130 E. 18 Owners Corp., 11 NY3d 512 [2008];  Viera v. Riverbay Corp., 44 AD3d 577 [1st Dept 2007] ).  Plaintiff's reliance on Goldstein v Consolidated Edison Co. of N.Y. (115 A.D.2d 34 [1st Dept 1986], lv denied 68 N.Y.2d 604 [1986] ), is misplaced as the defendant in Goldstein created a dangerous situation by encouraging the tenants to use the unlighted stairways to fetch water from the fire hydrant that the building superintendent had opened up for them.  Here, nothing in the record shows that defendants encouraged plaintiff or other tenants to use the unlighted stairs in any way.  To the extent plaintiff is arguing that defendants voluntarily assumed a duty of care by taking affirmative acts to alleviate the hazardous condition, and that he relied on such acts to his detriment, the record does not demonstrate that he relied on the actions taken by defendants in deciding to use the stairs to leave the building (see Heard v. City of New York, 82 N.Y.2d 66, 72–73 [1993];  Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 523 [1980] ).

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CLERK