Lasch v. Westbeth Corp. Hous. Dev.

2024 NY Slip Op 31207(U)

• Court: New York Supreme Court, New York County
• Decided: April 9, 2024
• Status: Unpublished

Opinion

Lasch v Westbeth Corp. Hous. Dev. 2024 NY Slip Op 31207(U) April 9, 2024 Supreme Court, New York County Docket Number: Index No. 151319/2019 Judge: Shlomo S. Hagler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 151319/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/09/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHLOMO S. HAGLER PART 17 Justice -------------------X INDEX NO. 151319/2019 PATRICIA LASCH, MOTION DATE 02/04/2022 Plaintiff, MOTION SEQ. NO. 001 -v- WESTBETH CORPORATION HOUSING DEVELOPMENT DECISION + ORDER ON FUND COMPANY, INC., MOTION Defendant.

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 35, 36, 37, 38, 39, 40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59,60 were read on this motion to/for JUDGMENT - SUMMARY

In this negligence action, defendant Westbeth Corporation Housing Development Fund

Company, Inc. ("defendant") moves for summary judgment pursuant to CPLR § 3212. Plaintiff

Patricia Lasch ("plaintiff') opposes the motion. The motion is denied for the reasons below.

Background

Defendant owns, maintains, manages, and controls the premises located at 463 West

Street, New York, New York (complaint, NYSCEF Doc No. 1 ,i,i 7-10). On November 10, 2018,

plaintiff fell in a stairwell between the first floor and the cellar of the premises and sustained

injuries (id. ,i,i 7, 14). Plaintiff alleges that an improperly installed handrail and inadequate

lighting were the causes of her fall (id i!l4).

Plaintiff testifies that after she went on a walk with her daughter, she and her daughter

saw signs for a flea market that was being held in the basement of her apartment building

(deposition transcript, NYSCEF Doc No. 40 at 27). Plaintiff says that she was walking down the

stairs to the basement while holding the left side handrail (id at 34-35). She states that the

151319/2019 LASCH, PATRICIA vs. WESTBETH CORPORATION HOUSING Motion No. 001 Page 1 of&

[* 1] 1 of 6 INDEX NO. 151319/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/09/2024

landing and the stairs were all painted gray and the lighting in the basement was "very dim" (id

at 35 lines 7-9, 88 lines 2-5). Plaintiff testifies that the banister she was holding onto ended, and

all she saw was gray-painted flooring ahead of her, leading her to believe that the next step was

the landing (id at 52 lines 6-10). She fell when she stepped onto what she perceived was the

landing but was actually another step (id.). At this point, she "went straight through the doorway

[at the bottom of the stairs] into a cement wall" and hit her head directly into the wall, feeling

sharp pains in her head, left wrist, and back (id at 35 lines 8-13). As a result of the fall, plaintiff

suffered a gash on her head, fractured ribs, and a fractured left wrist (NYSCEF Doc No. 40 at

61-62). Plaintiff subsequently received spinal infusions for pain and reconstructive surgery on

her wrist and attended physical therapy (id. at 64-65, 67).

Current photographs of the stairwell show the gray-painted stairs (with the last two stairs

now painted with a yellow safety stripe) and gray-painted landing (NYSCEF Doc No. 54 at 3).

The photographs also show that the right-side handrail extends to the last stair while the left-side

handrail stops at the second to last step before the landing (id). Photographs of a light meter on

the bottom step offered by the plaintiff show a measurement of 0.89-foot candles in the most lit

portion of the step, and a measurement of 0.27-foot candles in the dimmest portion of the step

(id at 5). Photos offered by the defendant show a measurement of 1.21 foot-candles in the same

stairwell (NYSCEF Doc No. 49 at 15).

Discussion

"In order to prevail on a negligence claim, a plaintiff must demonstrate ( 1) a duty owed

by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting

therefrom (Pasternack v Laboratory Corp. ofAm. Holdings, 27 NY3d 817, 825 [2016] [internal

quotation marks and citation omitted]). It is a building owner's "normal duty to maintain the

151319/2019 LASCH, PATRICIA vs. WESTBETH CORPORATION HOUSING Motion No. 001 Page2 of6

[* 2] 2 of 6 INDEX NO. 151319/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/09/2024

premises in a safe manner" Marcinak v Technical Mech. Servs., Inc., 17 AD3d 140, 140 [1st

Dept 2005]). Neither party disputes that defendant owed a duty of care to plaintiff to maintain a

safe building; hence, the court evaluates whether defendant breached that duty. Defendant moves

for summary judgment on the basis that no duty of care was breached. Specifically, defendant

argues that the stairwell without a handrail extending to the bottom of the landing and the

lighting conditions did not create dangerous or defective conditions.

Essential in determining whether defendant breached its duty of care is the classification

of the subject stairwell, as the classification determines the standards of maintenance and the

applicability of Building Code sections. Defendant relies on its expert, Michael Cronin, a

licensed professional engineer and consultant, to show that it did not breach its duty of care

(defendant's expert report, NYSCEF Doc No. 49). Cronin opines that the subject stairwell is an

access stairwell and not an interior stairwell; therefore, the standards for maintaining access

stairwells apply as to whether defendant breached its duty of care. (NYSCEF Doc No. 49 at 5).

In opposition, plaintiff relies on her expert, Robert T. Fuchs, a licensed professional engineer and

consultant (plaintiff expert report, NYSCEF Doc No. 52). According to Fuchs, "the

classification of the stair as an access stair by defendant's expert is not supported by the

evidence," (NYSCEF Doc No. 52 ,i 19). Plaintiff's expert contends that the subject stairwell is an

exit stairwell because there is a sign posted on the door designating the stairwell as a

"construction exit" (id. ,i,i 16, 19).

Though the experts disagree on the classification of the subject staircase, ultimately, "the

question [of] whether Building Codes apply to a structure is an issue of statutory interpretation

that the court should determine" as a matter of law (Lopez v Chan, 102 AD3d 625, 626 [ l st Dept

2013]; see also Gaston v New York City Housing Auth., 258 AD2d 220,224 [1st Dept 1999]

151319/2019 LASCH, PATRICIA vs. WESTBETH CORPORATION HOUSING Motion No. 001 Page 3of6

[* 3] 3 of 6 INDEX NO. 151319/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/09/2024

["Supreme Court erred in submitting the issue to the jury and failing to determine, as a matter of

law, that the staircase was not required to comply with section 27-376 of the Code"]). Here, the

subject staircase is not an interior staircase. An interior stairway is defined as a stairway that

leads to a required "exit" (see Admin. Code of the City ofNew York§ 27-232; Mansfieldv

Dolcemascolo, 34 AD3d 763, 764 [2d Dept 2006]; Schwartz v Hersh, 50 AD3d 1011, 1012 [2d

Dept 2008]; Remes v 513 West 26th Realty, LLC, 73 AD3d 665, 665 [l st Dept 201 OJ). Stairwell

"H" at issue here runs between the lobby of the building and the basement level, "and does not

lead to any entrance or exit from the building" (Aff. of Matthew Russas [NYSCEF Doc. No. 47]

at, 7). As it is not an interior staircase, the portions of the Building Code governing interior

staircases are not applicable (see Mansfield, 34 AD3d at 764; Walker v 127 West 22nd Street

Assocs., 281 AD2d 539, 540 [2d Dept 2001]).

Defendant argues that because there were no Building Code violations, it did not breach

its duty of care (Memorandum of Law, NYSCEF Doc No. 46 at 10). In support of its argument,

defendants provide an affidavit from Matthew Russas, the Registered Managing Agent and

Building Manager of the subject building. He states that the subject stairwell passed code

inspections on October 10, 2018, and October 16, 2018, weeks before plaintiff's fall on

November 10, 2018. He supports this statement by annexing the Certificate oflnspection Visits

(Russas Aff., ,, 1, 11, 12, 13; see Certificate oflnspections, NYSCEF Doc No. 48). In response,

plaintiff argues that defendant can still be liable under a common law duty (Memorandum of

Law in Opposition, NYSCEF Doc No. 55, 17, citing, e.g. Branch v SDC Discount Store, Inc.,

127 AD3d 547,547 [1st Dept 2015]). The court agrees. Even if the Code requirements for

"interior stairs" are not applicable and other Building Code sections are not otherwise violated,

defendants still have a common-law duty "to maintain the staircase in a reasonably safe

151319/2019 LASCH, PATRICIA vs. WESTBETH CORPORATION HOUSING Motion No. 001 Page4of6

[* 4] 4 of 6 INDEX NO. 151319/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/09/2024

condition, in view of all the circumstances, including the likelihood of injury to others, the

seriousness of the injury, and the burden of avoiding the risk" (Branch, 127 AD3d at 547

[internal quotation marks and citation omitted]). As such, the defendant may still be liable under

a theory of common law negligence.

Plaintiffs and defendant's experts disagree on key factual findings that preclude

summary judgment. The first is on the issue of illumination. Plaintiffs expert concludes that the

bottom of the stairwell had inadequate illumination, causing difficulty in distinguishing the end

of the bottom step, and that the lack of any marking painted along the tread nosing that would

distinguish it from the landing compounded the problem (NYSCEF Doc No. 52 ,r 24[b]). He

measured the lighting with a light meter and found the illumination "along the leading edge to

the bottom tread to be 0.89 foot-candles" and "0.27 foot-candles when the light meter was

positioned toward the inner portion of the bottom tread" (id ,r 14).

Conversely, Defendant's expert states that he "observed at his inspection that the

illumination was sufficient for persons to reasonably observe all points along their intended path

of travel" and concludes that "lighting in the subject stairway was sufficient for persons to make

reasonable observations along their intended path of travel. The lighting violated no known

applicable code, standard or ordinance" (NYSCEF Doc No. 49 at 6). Defendant's expert stated

that although there is no minimum illumination requirement in the Building Code for access

stairs, the lighting at the stairway measured 1.21 foot-candles, which is above the 1 foot-candle

minimum requirement even if the stairs were classified as interior stairs (id. at 5, 15). The

experts' opposing conclusions about whether there was adequate illumination in the stairwell

creates a disputed material fact. "Conflicting expert affidavits raise issues of fact and credibility

that cannot be resolved on a motion for summary judgment" (Bradley v Soundview Healthcenter,

151319/2019 LASCH, PATRICIA vs. WESTBETH CORPORATION HOUSING Page 5of6 Motion No. 001

[* 5] 5 of 6 INDEX NO. 151319/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 04/09/2024

4 AD3d 194, 194 [1st Dept 2004]; see Carter v HP Lafayette Boynton Hous. Dev. Fund Co., 210

AD3d 580 [1st Dept 2022] [finding an issue of fact precluding summary judgment when

defendants' expert measured a 0.625-inch height differential while plaintiff's expert measured

that height differential to be 1.063 inches]).

Lastly, the experts disagree on the sufficiency of the handrail placed along the subject

staircase. Plaintiffs expert concludes that the lack of a continuing handrail at the bottom of the

left side of the stairs is an "inherent safety hazard" and "does not conform to fundamental

principles of stair design and construction, generally good and accepted practice, or building

code requirements" (NYSCEF Doc No. 52 ,i 24[a]). In response to plaintiff's expert report,

defendant's expert disagrees and opines that "[t]he handrails present on the subject stairway met

the requirements of the New York State Multiple Dwelling Law" (NYSCEF Doc No. 49 at 5-6).

The experts dispute as to whether the discontinuous condition of the left handrail created a safety

hazard, and thus, whether defendant breached the duty of care it owes to the plaintiff to maintain

a safe building. Here, because the parties' experts disagree as to whether the discontinuous

handrail created a safety hazard breaching defendant's duty of care, defendant has failed to

demonstrate that there are no disputed material issues of fact (see Bradley, 4 AD3d at 194;

Bossert v New York University Langone Med. Ctr., 213 AD3d 547,548 [1st Dept 2023]).

Accordingly, it is hereby

ORDERED that defendant's motion for summary judgment is denied.

SHLOMO S. HAGLER, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

151319/2019 LASCH, PATRICIA vs. WESTBETH CORPORATION HOUSING Motion No. 001 Page 6of6

[* 6] 6 of 6