Howard Berman, Plaintiff, v. 160 PHOENIX OWNERS CORP (2023)

NYSCEF doc nos. 34-59, 64-68, 70-71, 73, 94-100, and 123 were read on seq. 002 for summary judgment.

NYSCEF doc nos. 74-89, 93, 101-103, 119-120, 124, and 127 were read on seq. 003 for summary judgment.

NYSCEF doc nos. 90-92, 104-118, 121-122, and 125-126 were read on seq. 004 for summary judgment.

Motion seq. no 002 by defendant 160 Parking Corp. pursuant to CPLR 3212 for an order granting summary judgment in favor of 160 Parking Corp. dismissing the complaint and all cross claims as against it denied.

Motion seq. no. 003 by defendant Phoenix Owners Corp. pursuant to CPLR 3212 for an order granting summary judgment in favor of Phoenix Owners Corp. dismissing the complaint and all cross claims as against it denied.

Motion seq. no. 004 by plaintiff Howard Berman pursuant to CPLR 3212 for an order granting summary judgment in favor of plaintiff on the issue of liability over defendants or determining that defendants violated the industry standard by failing to install handrails on both sides of the parking garage ramp denied.

BACKGROUND

Procedural History

Plaintiff commenced this action on January 28, 2021, by filing a summons and complaint (NYSCEF doc no. 1 [hereinafter complaint]). The subject premises is a parking garage located at 187 East 64th Street, New York, NY 10065 (hereinafter parking garage), which is part of a large building (complaint ¶ 4). The complaint alleges that defendant Phoenix Owners Corp. (hereinafter Phoenix) owned, operated, maintained, managed, and controlled the parking garage (id. ¶¶ 4-8). The complaint further alleges that Phoenix leased the parking garage to defendant 160 Parking Corp. (hereinafter 160 Parking) (id. ¶ 10). The complaint further alleges that 160 Parking operated, maintained, managed, and controlled the parking garage (id. ¶¶ 11-14).

The complaint alleges that, on December 14, 2020, plaintiff fell on the parking garage's ramp, sustaining severe and permanent injuries due to the negligence of defendants in failing to maintain and keep the parking garage and its ramp in safe and proper condition  ¹ (id. ¶ 19). The complaint further alleges that, on the date of the alleged accident, "the only way for persons who did not reside in the building to enter the parking garage was via the ramp" (id. ¶ 17).

Plaintiff asserts that defendants were negligent in: (1) permitting the ramp to be wet; (2) permitting the ramp's slope to be steep or improper; (3) failing to provide a handrail on the entrance side of the ramp; (4) causing the handrail on the exit side of the ramp to be unusable by blocking it with parked cars; (5) failing to provide adequate signage; and (6) failing to maintain and inspect the ramp (id. ¶ 20).

On March 11, 2021, 160 Parking filed an answer with cross claims against Phoenix (NYSCEF doc no. 3). On April 7, 2021, Phoenix filed an answer with cross claims against 160 Parking (NYSCEF doc no. 5). On September 26, 2022, plaintiff filed the note of issue (NYSCEF doc no. 33).

DISCUSSION

To succeed on a motion for summary judgment, the movant must "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad at 853).

Once the movant's prima facie showing has been made, the burden shifts to the opposing party to establish the existence of a material issue of fact sufficient to require a trial (see De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]). An opposing party's "mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient" to defeat a movant's summary judgment motion (Siegel v City of New York, 86 AD3d 452, 455 [1st Dept 2011], quoting Zuckerman at 562).

Storm-in-Progress Defense

As is relevant here, there is no dispute that there was a rainstorm in progress at the time of plaintiff's fall. Yet the storm-in-progress defense is not dispositive. Alleged structural defects can exacerbate dangerous conditions, and, combined with a storm in progress, greatly increase risk and present the "perfect trap" for injury (Vosper v Fives 160th, LLC, 110 AD3d 544, 545 [1st Dept 2013]). It is possible for building code violations to cause or contribute to a dangerous condition, thus proximately causing an injury, despite the applicability of the storm-in-progress defense (see id.).

Alleged Violations of the 1938 Building Code

Plaintiff alleges, as is relevant here, that defendants were negligent in: (1) failing to provide two handrails and blocking the sole handrail and its signage with cars; (2) permitting the ramp's slope to be too steep; and (3) failing to maintain and inspect the parking garage's ramp.

Alleged Handrail Violation

The certificate of occupancy for 160 East 65th Street, which expressly references the parking garage, is dated December 19, 1969  ² (NYSCEF doc no. 52, exhibit P, at 26). It is undisputed that the governing building code at the time of design and permitting of the subject parking garage was the 1938 Building Code. It is further undisputed that the 1938 Building Code does not provide handrail requirements for ramps. Plaintiff's expert argues that, as it has been the custom and usage in the industry to provide handrails on both sides of ramps since the 1968 Building Code was enacted and the National Fire Protection Association published Standard 101 in 1966, defendants breached a common-law duty to plaintiff to maintain the premises in a reasonably safe condition.

Plaintiff's reliance on nonmandatory standards and subsequent building codes for industry standards is inapposite because the relevant accepted practices and industry standards are those that were in place at the time the building design was put in place (see Hotaling v City of New York, 55 AD3d 396, 398 [1st Dept 2008], affd 12 NY3d 862 [2009]). Nonmandatory guidelines and recommendations are insufficient to establish the existence of the standard relied on at the relevant time (see id.). Further there is no argument here that defendants undertook any modification, renovation, or otherwise that would render a subsequent code provision applicable.

Of note, the New York City design and building industry is unique and localized. As such, a national code has no bearing on the industry customs and practice of the building and construction industry in New York City. The A1966 Technical Committee Report to the 1966 Edition of the National Fire Protection Association states that "the [c]ode is used primarily as a supplement to building Codes . . . ." (Report of Committee on Safety to Life at 535, available at https://www.nfpa.org/Assets/files/AboutTheCodes/101/1966_TCR-101.pdf [last accessed October 18, 2023] [emphasis added]).

Based on the foregoing, the court finds that there is no triable issue of fact as to whether the parking garage was required to have handrails. The applicable code, the 1938 Building Code, did not require any handrails on ramps, and plaintiff has failed to point to any industry standards at the time the parking garage was designed that might be applicable. As such, that the subject handrail and signage regarding handrails may have been blocked is immaterial.

Definition of Ramp Under the 1938 Building Code

To determine whether there is an issue of material fact surrounding whether the parking garage's ramp's slope and alleged lack of anti-slip surface violated the 1938 Building Code, the court must first determine whether the 1938 Building Code governs the subject ramp in any way.

Section C26-257.1 of the 1938 Building Code pertains to "open type" parking garage structures; although the subject parking garage is not an open type parking garage, this section states that, "[i]n all other garage structures, the number, location, and enclosure of stairs, ramps, and elevators shall be as required for buildings of that use, height and class of construction." (1938 Bldg Code § C26-257.1[n]). The 1938 Building Code defines a "garage" as a "building, shed or enclosure or any portion thereof in which a motor vehicle, other than one in which the fuel storage tank is empty, is stored, housed, or kept" (id. at § C26-76.0).

Based on the foregoing, the court finds that the subject parking garage comes within the 1938 Building Code's definition of "garage" and, consequently, the subject ramp must comply with the same ramp requirements as any other building of its class. The certificate of occupancy indicates that the Department of Buildings designated the premises and parking garage as a "Class A Multiple Dwelling" and that the parking garage is on the "1st and 2nd Sub-Cellar" stories (NYSCEF doc no. 48, exhibit B, at 57). The 1938 Building Code states that "where the exits serve parts of the building used for other than residence purposes, the provisions of the multiple dwelling law and of this article whichever are most restrictive shall apply. The exits from cellars of multiple dwellings shall comply with this article." (1938 Bldg Code § C26-272.0[1][a]). As such, the parking garage's exits must comply with the article's required exits.

The "Required Exits" section of the 1938 Building Code states that "[e]very floor area above or below the ground floor shall have at least two required means of egress available to all the occupants of such area . . . ." (id. at § C26-273.0[3][a] [emphasis added]).

As the parking garage is on the 1st and 2nd Sub-Cellar stories, which are below the ground, the parking garage is required to have two means of egress available to all the occupants of the parking garage (NYSCEF doc no. 48, exhibit B, at 57). Here, there is no dispute that the only means of egress available to plaintiff was the subject ramp where plaintiff's accident occurred, which is also the parking garage's driveway used by vehicles entering and exiting the parking garage.

The Appellate Division, First and Second Departments have issued holdings consistent with the premise that driveways are considered required exit ramps when they are used as an exit by all occupants. In Patafio v Porta-Clean of Am., Ltd. (48 AD2d 858, 859 [2d Dept 1975], revd on other grounds 39 NY2d 813 [1976]), the court found that a driveway was not a ramp within the meaning of the 1949 Building Code of the City of White Plains. In reaching its determination, the court reasoned that the sections of the code dealt with ramps used as exits or instead of exit stairways (id.). The court held that because the ramp in question was not used as an exit, it was not a "ramp" for the purposes of the code (id.).

Similarly, in Etheridge v Marion A. Daniels & Sons, Inc. (96 AD3d 436, 437 [1st Dept 2012]), the court held that the defendants established prima facie that a ramp did not violate any applicable building codes or industry standards where the ramp was not an exit from the buildings in question (see also Gross v Chrysler Sales Corp., 265 AD 661, 663-64 [1st Dept 1943]).

Where, as here, a parking garage's driveway was not only being used as a means of egress, but also was the only means of egress for all occupants, the subject driveway is a "ramp" under the 1938 Building Code section governing slope and anti-slip requirements.

Alleged Slope and Anti-Slip Violations

The "Required Exits" section of the 1938 Building Code states that "all ramps shall have a maximum pitch of one foot in eight and shall be provided with non-slip surfaces." (Bldg Code § C26-273.0[a][4]). There is no dispute that the parking garage ramp's slope exceeded the "one foot in eight" pitch limit. As such, the court finds that there is no issue of fact that the ramp as constructed violates the "Required Exits" section of the 1938 Building Code.

The experts dispute whether the parking garage's ramp had a non-slip surface at the time of the alleged accident. 160 Parking's expert, Lorenz, stated that the parking garage ramp has excellent slip-resistant qualities under both wet and dry conditions and that the ramp was properly maintained in a good condition (aff of Lorenz ¶ 16). Lorenz reached this conclusion after conducting a wet-and-dry dynamic slip resistance test on the floor surface 1.67 years after plaintiff's accident occurred (id. ¶¶ 3, 7).

Phoenix's expert, Interian, also conducted a wet-and-dry slip resistance test of the floor surface 1.67 years after plaintiff's accident and found the ramp's slip index to conform to the standard custom and practice within the industry for safe walking surfaces (aff of Interian ¶ 19).

As noted by plaintiff's expert, Silberman, given that Lorenz's and Interian's inspections took place 1.67 years after plaintiff's accident occurred, an issue of fact remains as to whether the parking garage's ramp was slip-resistant and safe at the time of plaintiff's accident. As such, whether the ramp's slope and anti-slip coating were out of compliance with the 1938 Building Code at the time of plaintiff's accident remains an issue of fact.

Liability of Defendant Phoenix Corp.

Generally, an out-of-possession landlord may not be held liable for a third-party's injury on their premises unless the landlord had actual or constructive notice of the defect (see Lopez v 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 AD2d 230, 231 [1st Dept 2002]). Constructive notice may be found where a landlord reserves a right under the terms of the lease to enter the premises for the purposes of inspection, maintenance, and repair, and there is a structural or design defect contrary to a specific statutory provision (see Lopez v 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 AD2d 230, 231 [1st Dept 2002]; Davis v HSS Properties Corp., 1 AD3d 153, 154 [1st Dept 2003]). Here, the lease submitted indicates that Phoenix retained the right to inspect, maintain, and repair the premises. As such, Phoenix has failed to show prima facie that it did not have constructive notice of the alleged 1938 Building Code violations.

Liability of Defendant 160 Parking Corp.

A finding of negligence must be based on a breach of duty (see Espinal at 138). A contractual obligation, standing alone, generally does not give rise to tort liability in favor of a third party (see id.). Moreover, the Appellate Division, First Department has found that, under certain circumstances, commercial tenants cannot be held liable for personal injuries to pedestrians caused by violations of city building code provisions, as such provisions are not applicable to tenants (see McLaughlin v Ann-Gur Realty Corp., 107 AD3d 469, 469 [1st Dept 2013]).

Yet there are three situations where a contracting service provider may have assumed a duty of care to third persons: (1) where the contracting party launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain a safe premises (see id. at 140). A contracting party launches a force or instrument of harm where that party undertakes to provide services and then negligently creates or exacerbates a dangerous condition (see id. at 141-142).

In applying the Espinal test, although 160 Parking repaved the parking garage's ramp, repaving the ramp would not change the original slope of the ramp. Thus, it cannot be said that 160 Parking launched a force or instrument of harm regarding the ramp's slope. Further, plaintiff has proffered no evidence to suggest that plaintiff detrimentally relied on the continued performance of 160 Parking's contractual duties. Lastly, as aforementioned, 160 Parking did not entirely displace Phoenix's duty to maintain safe premises because Phoenix reserved the right to inspect, maintain, and repair the premises pursuant to the lease. As such, 160 Parking cannot be subject to liability for the ramp's slope violation of the 1938 Building Code.

In contrast, 160 Parking can be held liable if the court finds that the ramp was not provided with a non-slip surface, or that 160 Parking failed to maintain the ramp. The testimony of Silva submitted by 160 Parking itself raises an issue of fact as to whether 160 Parking negligently created or exacerbated a dangerous condition by having the ramp repaved and failing to maintain the ramp's anti-slip coating. As such, 160 Parking has failed to show prima facie that it did not launch a force or instrument of harm subjecting it to liability under Espinal.

As neither defendant submitted any evidence or argument in its moving papers establishing prima facie entitlement to dismissal of the cross claims asserted against it, the branches of the motions seeking dismissal of any cross claims are denied in their entirety, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

CONCLUSION

Accordingly, it is

ORDERED that motion seq. nos. 002-004 are denied in their entirety; and it is further

ORDERED that, within five days of entry, each defendant shall serve a copy of this order with notice of entry on all parties, and plaintiff shall serve a copy of this order with notice of entry on defendants.

The foregoing constitutes the decision and order of the court.

[Portions of the opinion omitted for purposes of publication.]

10/18/2023

FOOTNOTES

1.   Plaintiff and 160 Parking both submitted surveillance video of plaintiff's accident. The court has reviewed and considered the video for the purposes of the motions.

2.   As is relevant here, Phoenix argues that the certificate of occupancy establishes prima facie that the subject parking garage complied with all building codes. Yet the issuance of a certificate of occupancy, without more, does not preclude a finding of negligence based on the existence of building code violations (see Hyman v Queens County Bancorp, Inc., 307 AD2d 984, 989 [2d Dept 2003], affd 3 NY3d 743 [2004]). Moreover, the certificate of occupancy does not state that the subject ramp's slope and anti-slip surface complied with the 1938 Building Code.

Eric Schumacher, J.