SCOTT v. LYCEUM THEATRE CORPORATION (2023)

Order, Supreme Court, New York County (Sabrina Kraus, J.), entered August 25, 2022, which denied defendants/third-party plaintiffs Lyceum Theatre Corporation and The Shubert Organization, Inc.’s (collectively defendants) motion for summary judgment dismissing plaintiff's common-law negligence claim and on their contractual indemnification claim against third-party defendant Broadway Chill LLC, unanimously affirmed, without costs.

Plaintiff alleges that she fell on a winder staircase, which consists of straight and curved sections, in the backstage area of the Lyceum Theater in Manhattan.  Supreme Court correctly denied defendants’ summary judgment motion as they failed to eliminate all questions of fact as to whether the winder steps and handrail placement constituted a dangerous condition.  Among other things, their expert did not opine that the backstage staircase was maintained in a reasonably safe condition (see Lievano v. Browning School, 265 A.D.2d 233, 233, 696 N.Y.S.2d 452 [1st Dept. 1999]).  Defendants also failed to show that there are no issues of fact as to whether they had constructive notice of the dangerous condition (see Katz v. Blank Rome Tenzer Greenblatt, 100 A.D.3d 407, 407, 953 N.Y.S.2d 496 [1st Dept. 2012]).

It was not speculation as to whether a proper handrail or safe stair treads would have prevented plaintiff's fall (see Gil v. Margis Realty LLC, 183 A.D.3d 547, 548, 122 N.Y.S.3d 893 [1st Dept. 2020]).  Plaintiff testified that she carried a laundry basket under her left arm while descending the backstage staircase, that she held the handrail with her right hand until it ended where the winder steps turned and narrowed, and that she tried to grab the handrail after losing her balance but was unable to because it was beyond her reach.  Plaintiff also averred she would have used a handrail along the outside wall by the winder steps if one was present, as it would have allowed her to descend on the wider, and thus safer, part of the winder steps.

Supreme Court also correctly denied defendants summary judgment on their contractual indemnification claim against Chill because questions of fact exist regarding defendants’ negligence (see Spielmann v. 170 Broadway NYC LP, 187 A.D.3d 492, 494, 133 N.Y.S.3d 556 [1st Dept. 2020]).

We have considered defendants’ other arguments and find them unavailing.