Babich v. R.G.T. Restaurant Corp.

71 A.D.3d 479, 896 N.Y.S.2d 334

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2010
• Status: Published

Opinions

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 2, 2009, which, in an action for personal injuries sustained in a slip and fall down a staircase, granted defendants’ motions for summary judgment dismissing the complaint, reversed, on the law, without costs, the motion denied and the complaint reinstated.

Defendants established their prima facie entitlement to summary judgment by submitting evidence that the subject staircase was in compliance with the applicable Building Code provisions (see Administrative Code of City of NY § 27-375 [f], [h]; § 27-381 [a]). In opposition to the motion, plaintiffs submitted an affidavit from an expert, an architect, stating that he visited, the building in question and observed that the existing stair was “steel with a matte black non-slip finish that is applied to it as required by the New York City Building Code,” but the “nonslip finish on the nosing of each tread and top platform is severely worn off,” thereby “creating an extremely slippery condition at the edge nosing of the top platform and at each stair tread.” This expert evidence submitted by plaintiffs raised a triable issue of fact as to whether the tread of the stairs complied with the pertinent regulations of the Building Code. Moreover, the injured plaintiffs testimony that she slipped on the top step of the subject stairway, coupled with her expert’s testimony of the slippery condition of such steps due to worn-off treads, provided sufficient circumstantial evidence to raise an issue of fact as to whether her fall was caused by the allegedly defective condition (see Garcia v New York City Tr. Auth., 269 AD2d 142 [2000]; Gramm v State of New York, 28 AD2d 787 [1967], affd 21 NY2d 1025 [1968]). Concur—Mazzarelli, J.P., Acosta and Renwick, JJ.