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Supreme Court, New York,

Sydelle TURK and Harold Turk, Plaintiffs, v. SHAKESPEARE ON THE HUDSON, LLC d/b/a Stewart House, Defendant.


Decided: October 18, 2018

Ralph C. Lewis, Jr. Esq., Counsel for Plaintiffs, 287 Main Street, P.O. Box 383, Catskill, New York 12414 Joshua D. Lindy, Esq., Counsel for Defendant, movant, Fitzgerald Morris Baker Firth P.C., 16 Pearl Street, P.O. Box 2017, Glens Falls, New York 12801

This is a premises liability action wherein Plaintiff Sydelle Turk (hereinafter “Sydelle”) alleges that she sustained personal injuries when she was caused to trip and fall down a short stairway at the side exit of Defendant's restaurant on February 27, 2016. She testified at her deposition that she was exiting the restaurant at approximately 11 PM, went through the doorway, missed a step, and just “went down.” She testified that her foot did not come into contact with anything else and that she “must have went over that step, I think and then I fell.” She confirmed that she did not trip on anything, her eyesight was “fine,” and she did not recall the lighting around the steps. Plaintiff Harold Turk (hereinafter “Harold”), whom was right behind Plaintiff Sydelle, corroborated her account by testifying that “[a]ll of a sudden she went down, almost like she missed a step and she started to go forward.” The subject stairway was the same set of stairs used by the Plaintiffs to enter Defendant's restaurant and consists of two steps (three risers and two treads).

Now, Defendant moves for summary judgment on the grounds, inter alia, that Plaintiff Sydelle is not able to identify the cause of her alleged accident and that the subject steps were reasonably maintained. Plaintiffs submit opposition, and Defendant submits a reply.

To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; accord Hollis v. Charlew Const. Co., Inc., 302 AD2d 700 [3d Dept 2003]; Balnys v. Town of New Baltimore, 160 AD2d 1136, 1136 [3d Dept 1990] [noting the movant must come “forward with competent proof refusing the allegations of the complaint as amplified by the bill of particulars.”].) In a premises liability matter, “[t]o establish a prima facie entitlement to summary judgment, defendant was required to show that it maintained its property ‘in a reasonably safe condition and that [it] neither created nor had actual or constructive notice of the allegedly dangerous condition’ ” (Lucatelli v. Crescent Assoc., 132 AD3d 1225, 1225 [3d Dept 2015], quoting Decker v. Schildt, 100 AD3d 1339, 1340 [3d Dept 2012]; see also Basso v. Miller, 40 NY2d 233 [1976] ).

Here, Defendant has established entitlement to summary judgment by and through the deposition testimony of Plaintiffs, particularly Plaintiff Sydelle who admits to missing a step, and the expert affidavit of Stuart Morrison who is a professional engineer licensed in New York. Mr. Morrison opines that, based on his engineering investigation of the exterior staircase at Defendant's premises in May of 2018, that Defendant's premises was constructed in 1883 and “[t]here were no signs of any significant alterations of [sic] modifications to the premises.” He opined that the premises were “generally well maintained” and the subject stairs were “level and stable in nature[,]” with “[n]o looseness[,]” and that the stairs appeared to be “older in nature” with a “sturdy handrail” which was not required by New York State Building Code. Mr. Morrison further stated that “[t]here were no signs of any recent work on this area of the property that would have triggered or mandated adherence to the current New York State Building Code requirements.” As such, he found that the “subject steps and doorway meet all requirements of the International Property Maintenance Code as adopted by the New York State Building Code.”

Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 NY2d at 562.) “[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination” (Swartout v. Consolidated Rail Corp., 294 AD2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]; Greco v. Boyce, 262 AD2d 734, 734 [3d Dept 1999] [holding courts are “to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists.”] ).

Here, Plaintiffs raise a question of fact and credibility warranting denial of summary judgment. This is achieved by and through the affidavit of Alden P. Gaudreau, who is a professional engineer licensed in New York. Mr. Gaudreau's affidavit is premised on an onsite inspection of the subject premises in August of 2018 coupled with his review of Mr. Morrison's affidavit in support of summary judgment—which he did not have at the time of his inspection. Mr. Gaudreau opines that Mr. Morrison “failed to do a proper investigation to the work history of the subject premises” because a FOIA request to the Village of Athens revealed a building permit involving the subject stairway to “open side door for egress” was issued on April 29, 2008. This is significant for two reasons. First, it attacks the propriety of Mr. Morrison's investigation which twice stated that there were no apparent changes to the subject stairway, thus lending to the point that Mr. Morrison's review was superficial, conclusory, or tailored. Second, according to Mr. Gaudreau, this permit triggers compliance with the relevant New York State Building Codes, New York State Uniform Fire Prevention Code, and Village of Athens local laws at the time of the modification—not in 1883 when the premises were constructed like Mr. Morrison implies.

As such, Mr. Gaudreau finds a violation of the relevant building code section 1009.3 which governs “Stairway Landings” and provides “there shall be a floor or landing at the top of bottom of each stairway ․ every landing shall have a minimum dimension measured in the direction of travel equal to the width of the stairway.” Mr. Gaudreau states that, because the treads are 36 inches in width, the landing must also be at least 36 inches wide. However, he notes that the subject stairway had no landing at the doorway or top of the stairway. He states that the purpose of the landing is “for a safe transition from the interior to the exterior or from the stairway to the building.” Given the crystal-clear testimony that Plaintiff Sydelle accessed the side door and “went down” because she missed a step, the Court agrees that a question of fact whether the failure to have the required landing may have caused Plaintiff Sydelle to miss the step. This is in sharp contrast to decisional law cited by Defendant regarding cases where a plaintiff misses a step and is barred from recovery, as those such cases fail to address a possible code violation such as this case—particularly the lack of a landing. This also calls into question Defendant's allegation that Plaintiffs are unable to identify the cause of her fall which warrants summary judgment, as the opposition by Mr. Gaudreau makes it clear that Plaintiff Sydelle fell due to, at least in part, the failure to maintain a landing.

Mr. Gaudreau also opines a violation of that the relevant building code in section 1009.3 which governs “Stair Treads and Risers.” This section requires that “stair riser heights shall be 7 inches (178 mm) maximum and 4 inches (102 mm) minimum ․ the greatest riser height within any flight of stairs shall not exceed the smallest more than 0.375 inch (9.5 mm).” However, Mr. Gaudreau found that the highest riser measured to be 101/212 inches and the least was 7 3/8 inches, which means none of the risers met the maximum height and they had a height difference greater than 0.375 inches between risers. He opined that the reason for the maximum height of risers and uniform risers is because “[e]xcessively high risers cause stair users to reach for lower risers causing potential for the loss of balance[,]” and that “[n]onuniform risers likewise cause difficulty in descending, especially the loss of balance.” Thus, the Court agrees with Plaintiffs that, in a light most favorable to the non-movant, Plaintiff Sydelle's fall while descending may have been caused, at least in part, due to excessively high and nonuniform risers.

Defendant's reply fails to rebut Mr. Gaudreau's statements. While Mr. Morrison writes that the subject building permit does not specifically reference the building of a staircase with the side door egress, it is axiomatic that egress from a building elevated above the ground level may require construction of a stairway. Nonetheless, this is not adequately explained as Defendant failed to offer an affidavit in opposition from an individual with personal knowledge as to the side egress that the subject stairs were already present or built pursuant to the referenced permit. Thus, Mr. Morrison's point is nothing more than fodder for cross-examination. To the extent that Mr. Morrison further contends that Mr. Gaudreau is using the wrong set of building codes, this is a difference in opinion between the experts which is further resolved at trial as Defendant offers nothing in reply which definitively established which code applies. Moreover, while the Court understands Defendant's point that Plaintiff admitted to missing a step which it should not be liable for her error, not only is this resolved by the potential building code violations such as no landing, but this is also an issue of comparative negligence which is an issue of damages and not an aegis to liability.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Defendant's motion is DENIED, and all other relief requested therein is denied in its entirety.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.


Lisa M. Fisher, J.

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