TARRAZI v. Colin Service Systems, Inc., a/k/a Colin Cares, Third Third-Party Defendant-Respondent. (2002)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated January 9, 2001, which, sua sponte, dismissed her cause of action for negligent lighting against the defendant 2025 Richmond Avenue Associates, Inc.

ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is reversed, on the law, with costs, and the cause of action for negligent lighting against the defendant 2025 Richmond Avenue Associates, Inc., is reinstated.

The order appealed from did not determine a motion made on notice, and therefore is not appealable as of right (see CPLR 5701[a][2];  Sena v. Nationwide Mut. Fire Ins. Co., 198 A.D.2d 345, 603 N.Y.S.2d 173;  Matter of Baby Boy G., 189 A.D.2d 762, 592 N.Y.S.2d 273;  Kokalari v. Kokalari, 166 A.D.2d 418, 560 N.Y.S.2d 484).   However, we deem the notice of appeal to be an application for leave to appeal, and grant the application in the interest of justice (see CPLR 5701[c];  Rassaei v. Kessler, 252 A.D.2d 577, 676 N.Y.S.2d 217;  Sena v. Nationwide Mut. Fire Ins. Co., supra;  Matter of Baby Boy G., supra).

On August 15, 1994, the plaintiff was injured while descending an unlit emergency exit staircase in a building owned by the defendant 2025 Richmond Avenue Associates, Inc. (hereinafter the owner).   At the time of the accident, the plaintiff was employed by a medical group located in the building.

In February 1995 the plaintiff commenced this action against the owner and APB Investigations, Inc. (hereinafter the security company), the security company retained by the owner to monitor the building.   The plaintiff alleged in her complaint that both defendants were negligent in failing to provide adequate lighting, and in failing to warn of the dangerous condition that existed on the staircase.   The plaintiff testified at her deposition that a guard from the security company advised her that he was about to lock the main door to the office building, and instructed her to leave through the emergency exit.

In 1997 the security company moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.   In November 1997 the owner cross-moved, inter alia, for summary judgment dismissing so much of the complaint as asserted a cause of action to recover damages based on a failure to warn.   On April 2, 1998, the Supreme Court denied the respective summary judgment motions.

The security company appealed from so much of the April 2, 1998, order as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.   By decision and order dated April 12, 1999, this court modified the order by granting that branch of the motion which was for summary judgment dismissing the complaint (see Tarrazi v.2025 Richmond Ave. Assocs., 260 A.D.2d 468, 688 N.Y.S.2d 220).   Moreover, upon searching the record, this court granted that branch of the owner's cross motion which was to dismiss the complaint insofar as it asserted a cause of action against it for failure to warn.

Subsequently, in the order appealed from, the Supreme Court, sua sponte, dismissed so much of the complaint as asserted a cause of action against the owner to recover damages based on negligent lighting.   The plaintiff now appeals.

 It is well settled that a landowner is charged with the duty of maintaining its premises in a reasonably safe condition (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868).   Particularly, “[a] landowner whose property is open to the public is charged with the duty of providing safe means of ingress and egress, which includes a duty to provide adequate lighting” (see Shirman v. New York City Tr. Auth., 264 A.D.2d 832, 833, 695 N.Y.S.2d 582;  see also Gallagher v. St. Raymond's R.C. Church, 21 N.Y.2d 554, 289 N.Y.S.2d 401, 236 N.E.2d 632).

In view of the plaintiff's deposition testimony, there is an issue of fact as to whether the assumption of the risk doctrine is applicable, as the plaintiff alleges that she had no alternative means to exit the building and therefore did not expressly consent to engage in conduct where there was an elevated risk of danger (see Taylor v. Massapequa Intl. Little League, 261 A.D.2d 396, 689 N.Y.S.2d 523;  Cohen v. Heritage Motor Tours, 205 A.D.2d 105, 618 N.Y.S.2d 387).   Accordingly, the Supreme Court erred in, sua sponte, dismissing so much of the complaint as asserted a cause of action against the owner alleging negligent lighting.

The owner's remaining contentions are either without merit or not properly before this court.