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Alexander DONKOR, Plaintiff, v. FIRST GHANA SEVENTH-DAY ADVENTIST CHURCH, et al., Defendants.
The following papers numbered were read on this motion (Seq. No. 003)
for SUMMARY JUDGMENT DEFENDANT noticed on January 16, 2020.
Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed No (s). 72 - 81
Answering Affidavit and Exhibits No (s). 82 - 89
Replying Affidavit and Exhibits No (s). 91
Plaintiff, Alexander Donkor, alleges that he was injured on March 18, 2017 at the First Ghana Seventh Day Adventist Church, located at 45 Goble Place, County of the Bronx, State of New York, as he was attempting to come down a flight of steps within the church.
Defendants, Greater New York Corporation of Seventh-Day Adventists and Greater New York Conference Of Seventh-Day Adventists, the religious organizations which own and operate the church, move for summary judgment on the basis that they are entitled to summary judgment dismissing the complaint because the stairway was not in a dangerous condition, and they had no notice of any dangerous condition.
A party moving for summary judgment must show a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 ). Once that initial burden has been satisfied, the “burden of production” shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. In deciding a motion for summary judgment, the court should interpret the evidence in a manner that most favors the opposing party (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept. 2013]).
A plaintiff in a slip-and-fall case must demonstrate that the defendant created, or had actual or constructive notice of the defective condition which allegedly caused him or her to fall (see Price v EQK Green Acres, 275 AD2d 737 [2nd Dept. 2000]). To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit a defendant to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 ). Moreover, proof of “a ‘general awareness’ that a dangerous condition may be present” is not sufficient to establish notice of the particular condition which caused a plaintiff to fall (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 ).
Defendants' motion for summary judgment is supported, inter alia, with an affidavit from their engineer, Jeffrey J. Schwalje, P.E. Defendants assert that their expert inspected the premises and provided his opinion that the subject access stairway did not violate any applicable Codes or regulations, and was properly and safely maintained, free of hazards. According to the affidavit, Mr. Schwalje inspected the steps on November 17, 2017. His affidavit states that the upper level audio/visual booth is accessed from the first-floor entranceway by a wooden carpeted stairway, that the carpet is grey, the carpeting is securely installed onto each step in cap and band fashion and that the left side of the stairway included a solid wooden guard and a metal handrail that measures 4” in width.
Mr. Schwalje concludes that: the subject stairway is an access stairway limited in use, specifically for authorized persons to gain access to the audio/visual control booth; the requirements for “interior” stairways as specified in the 1968 edition of the New York City Building Code, which he asserts is the applicable building code, do not apply to the stairway in question, which he characterizes as an “access” stairway; the riser heights were constant (7.75”) in the area of plaintiff's accident and would be considered code compliant; the carpeted steps were slip resistant and properly maintained free of hazards; the step treads would have been able to safely accommodate plaintiff's foot size; the handrail was graspable and at a proper height for safe use; and that the lighting was abundant, the steps were stable, the carpeting was securely installed and that had plaintiff used the handrail and held onto it, he would have prevented his fall.
Defendants also submit the testimony of Mr. Franklin Owusu, church secretary, who did not witness the alleged accident, but testified that he learned of it through two other witnesses who presently attend the church. Mr. Owusu also testified that the Deacon and Deaconess were responsible for the maintenance/cleaning of the church and clean every Friday. The stairs would be broom cleaned and vacuumed. The carpet on the stairs had been in place since 2012. Mr. Owusu was not aware of the carpet stretching or being loose. He further testified that the Church had never received any complaints about the stairs, and he was not aware that any one had ever fallen on the stairs, except plaintiff.
Defendants assert that they neither created or had actual or constructive notice of the condition which caused the accident, citing Gordon v American Museum of Natural History, 67 NY2d 836 (1986) and Batista v. City of NY, 108 AD3d 484, 486 (1st Dept. 2013) (“Specificity of proof is required”).
Finally, defendants argue that the report of plaintiff's expert, Robert Schwartzberg, is insufficient to defeat the defendant's motion for summary judgment because his report is devoid of any “authority, treatise, standard, building code, article or other corroborating evidence” to support his assertions that the carpeted stairs were an extreme tripping hazard.
Plaintiff alleges that while descending the carpeted stairway that was used to gain access to a control booth at the rear of the sanctuary inside the church he attended, he slipped and fell. He further alleges that the stairs were too steep and were covered with an old, worn and slippery carpet. Plaintiff further testified at his deposition that he slipped first on the fifth from the top step and that he was trying to hold the hand rail with his left hand but couldn't grab it because it was larger than his hand; he then took a step and saw that something blocked his toes and caught his foot, which he observed to be the tip of the stairs covered with carpet. Plaintiff asserts that the carpet was worn, dirty and, therefore, slippery and that the carpet was bunched up.
Plaintiff's opposition is further supported by his expert, Robert Schwartzberg's report following a site inspection on October 9, 2017. He observed the carpeting and provided pictures of the exterior and interior of the church, which appears to be a converted commercial property of not more than two stories. The plaintiff's pictures of the stairway, which is referred to in his report as an interior stairway, show someone holding a ruler to reveal the measurements of the rise of the steps. His report opines that the stairs in question were interior and not access stairs and furthermore, since the building code lists requirements for interior, but nothing for access staircases, these code provisions must be applied to these stairs. And he makes the further point that defendant's engineer's opinions that the stairs were fine, flies in the face of photos that show it is old, worn, uneven and bunched up.
Plaintiff claims that defendants violated New York City Administrative Code 27-375(e)(2). Contrary to the plaintiff's contentions, Section 27-375, governing interior stairs, is inapplicable because interior stairs are stairs within a building that serve as a required exit, N.Y.C. Admin. Code 27-232. In this action, the subject stairway does not serve as an “exit” which the Building Code defines as “[a] means of egress from the interior of a building to an open exterior space.” The subject stairs constituted access stairs, and not interior stairs, within the meaning of the 1968 Building Code (Administrative Code 27-232, 27-375[f]). An access stair is defined as a stair between two floors in a building that does not serve as a required exit and the undisputed evidence in this action establishes that the stairs on which plaintiff fell merely connected two floors (see Lopez v Chan, 102 AD3d 625, 626 [1st Dept 2013]). Therefore, the contention that the tread widths, riser heights and the height of the handrail of the subject staircase did not comply with the Code's requirement for interior stairs has no applicability (Cusumano v City of New York, 15 NY3d 319, 324 ).
In the instant matter, Defendants established its entitlement to judgment as a matter of law. Defendants submitted evidence showing that it neither created nor had notice of the allegedly dangerous condition that caused plaintiff's fall. Defendants have demonstrated a prima facie entitlement to summary judgment and plaintiff has not demonstrated that there was a defective condition under any applicable code or that there is any specific code that applies to these access steps. Moreover, by plaintiff's own admission he had never complained to anyone about the alleged defective staircase and defendant showed that there had been no complaints about the staircase before the accident (see Cruz. v Montefiore Med. Ctr., 45 AD3d 355 [1st Dept. 2007]).
In opposition, plaintiff failed to raise an issue of fact. The cited Code violations are not applicable in this action and the contention that the rug on the stairwell where plaintiff slipped was worn, is merely conclusory and insufficient to raise an issue of fact as to whether defendant had notice of the alleged worn condition. Moreover, from either plaintiff's or defendants' set of pictures, there is no evident dangerous condition of the staircase. Plaintiff established nothing more than a possibility that his fall was caused by the condition of the carpeting on the stairs. Under the circumstances, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation. Although plaintiff presumes that the carpet caused her to fall, “conclusions based upon surmise, conjecture, speculation or assertions are without probative value” (Maiorano v Price Chopper Operating Company Inc., 221 AD2d 698, 699 [3rd Dept 1995]). Therefore, plaintiff has failed to raise a triable issue of fact to defeat defendants' prima facie entitlement.
Accordingly, it is hereby
ORDERED that movants motion for summary judgment is hereby granted and the complaint is dismissed as to these two defendants.
This constitutes the Decision and Order of the Court.
Adrian Armstrong, J.
Response sent, thank you
Docket No: 23694/2017E
Decided: May 03, 2021
Court: Supreme Court, Bronx County, New York.
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