DOUGHERTY v. 359 LEWIS AVENUE ASSOCIATES LLC (2021)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated April 3, 2019.  The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On March 18, 2016, the plaintiff allegedly was injured when he was conducting an inspection of a building owned by the defendant.  The plaintiff was standing atop a 163/838 inch wide platform on the fourth floor of the fire escape when he fell through the stairway opening, which did not have a guardrail, and landed on the third floor platform of the fire escape.  The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in the accident.

The defendant moved for summary judgment dismissing the complaint.  The Supreme Court denied the defendant's motion.  The defendant appeals, arguing, inter alia, that the unguarded stairway opening did not constitute a dangerous condition because it did not violate any codes or statutes, and that it lacked constructive notice of the condition.

A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255;  Locke v. Calamit, 175 A.D.3d 560, 561, 104 N.Y.S.3d 908).  “In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” (Steed v. MVA Enters., LLC, 136 A.D.3d 793, 794, 26 N.Y.S.3d 98 [internal quotation marks omitted]).  Thus, “[i]n a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence” (Beri v. Chung Fat Supermarket, Inc., 125 A.D.3d 587, 587, 999 N.Y.S.2d 748).

It is undisputed that the fire escape's lack of a guardrail along the open stairway did not violate any codes or statutes at the time the fire escape was installed between 1905 and 1907.  Nevertheless, “ ‘the absence of a violation of a specific code or ordinance is not dispositive of a plaintiff's allegations based on common-law negligence principles’ ” (Romero v. Waterfront N.Y., 168 A.D.3d 1012, 1013, 92 N.Y.S.3d 333, quoting Alexis v. Motel Oasis, 143 A.D.3d 926, 927, 40 N.Y.S.3d 162;  see DeCarlo v. Vacchio, 147 A.D.3d 724, 724–725, 45 N.Y.S.3d 581).  “[A] defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances” (Romero v. Waterfront N.Y., 168 A.D.3d at 1013, 92 N.Y.S.3d 333).  Here, the defendant failed to eliminate triable issues of fact as to whether the lack of a guardrail around the fire escape's stairway was a breach of the defendant's common-law duty to maintain the fire escape in a reasonably safe condition (see DeCarlo v. Vacchio, 147 A.D.3d at 725, 45 N.Y.S.3d 581;  Swerdlow v. WSK Props.  Corp., 5 A.D.3d 587, 588, 772 N.Y.S.2d 864).

In addition, the defendant failed to establish, prima facie, that it lacked constructive notice of the dangerous condition.  “A defendant has constructive notice of a dangerous condition when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it” (Fortune v. Western Beef, Inc., 178 A.D.3d 671, 672, 115 N.Y.S.3d 93;  see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774).  As the condition of the fire escape has existed since 2010 when the defendant purchased the building, the defendant failed to establish that it lacked constructive notice that the lack of a guardrail along the stairway opening was a dangerous condition (see Stancarone v. Sullivan, 167 A.D.3d 676, 678, 89 N.Y.S.3d 325).

Finally, to the extent, as alleged by the defendant, that the danger presented by the unguarded stairway was open and obvious or that the plaintiff was negligent in standing with his back to the open stairway, these circumstances, which bear upon the issue of the plaintiff's comparative negligence, do not absolve the defendant of liability (see DeCarlo v. Vacchio, 147 A.D.3d at 725, 45 N.Y.S.3d 581;  Dunitz v. J.L.M. Consulting Corp., 22 A.D.3d 455, 457, 803 N.Y.S.2d 653).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

CHAMBERS, J.P., AUSTIN, LASALLE and BRATHWAITE NELSON, JJ., concur.