LARKIN v. Robert Longbottom, et al., Defendants-Appellants.

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Supreme Court, Appellate Division, First Department, New York.

Dennis LARKIN, etc., et al., Plaintiffs-Respondents, v. RADIO CITY MUSIC HALL CORPORATION, et al., Defendants, Robert Longbottom, et al., Defendants-Appellants.

Decided: April 26, 2001

ROSENBERGER, J.P., MAZZARELLI, ANDRIAS, ELLERIN and LERNER, JJ. Brian Shoot, for Plaintiffs-Respondents. Jonathan C. Scott, Peter Riggs, William R. White, for Defendants-Appellants.

Orders, Supreme Court, New York County (Diane Lebedeff, J.), entered October 15, 1999 and September 21, 2000, which, in an action for personal injuries sustained when plaintiff fell off the stage at Radio City Music Hall during the course of his employment there as a stagehand, insofar as appealed from, denied motions by defendants-appellants landlords and show director for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, with separate bills of costs payable to plaintiffs by defendants RCP Associates and RCP XI, Inc.

 An issue of fact exists as to whether defendants landlords, at the time of the accident, were responsible for maintenance of the stage elevator and its shaft into which plaintiff fell.   Such issue is largely attributable to the landlords' failure to produce the lease that was in effect at the time of the accident (see, Buckley v. Rockefeller Group, 143 A.D.2d 623, 533 N.Y.S.2d 8).   The 1982 lease on which the landlords appear to rely is simply not consonant with their position, in that, among other things, it bars the tenant from making any structural repairs or alterations without the landlord's written consent, and reserves control over various portions of the premises to the landlord, including “any space in and/or adjacent to the premises used for shafts”.   There is no merit to the landlords' contention that the furnishing of protection against a fall into an elevator shaft does not constitute a structural alteration (see, De Cristofaro v. Joann Enters., 243 A.D.2d 1015, 1016-1017, 663 N.Y.S.2d 689;  McGilloway v. Block 1289 Assocs., 266 A.D.2d 35, 698 N.Y.S.2d 21, lv. dismissed 94 N.Y.2d 915, 708 N.Y.S.2d 50, 729 N.E.2d 707, lv. denied 95 N.Y.2d 755, 712 N.Y.S.2d 447, 734 N.E.2d 759;  Wagner v. Grinnell Hous. Dev. Fund Corp., 260 A.D.2d 265, 688 N.Y.S.2d 551).   The landlords' assertion that the elevator shaft complied with all applicable Code provisions and was otherwise reasonably safe as a matter of law is improperly raised for the first time on appeal.   In any event, Code compliance would not be dispositive of whether the landlords had a common-law duty to protect plaintiff against an unguarded 27-foot drop (see, Kellman v. 45 Tiemann Assocs., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255).

 As to defendant show director, although he did not design the elevator and its appurtenant shaft, lacked authority to install protection against the open shaft and did not directly supervise the stagehands, a jury could reasonably conclude that his conception of the show was such as to subject stagehands such as plaintiff to an unreasonable risk of falling into the shaft.

We have considered appellants' other arguments and find them to be unavailing.