Parke v. ST Owner LP

Appellate Division of the Supreme Court of New York

Parke v. ST Owner LP

2017 NY Slip Op 3070, 149 A.D.3d 597, 50 N.Y.S.3d 288

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 20, 2017

Docket3791 155358/13

StatusPublished

This text of 2017 NY Slip Op 3070 (Parke v. ST Owner LP) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Parke v. ST Owner LP, 2017 NY Slip Op 3070, 149 A.D.3d 597, 50 N.Y.S.3d 288 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 9, 2016, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Strike Force of New Jersey, Inc. (Strike Force) and Jonathan Ubogu for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff was injured when she fell down a darkened staircase in her apartment building, which was left without electricity in the aftermath of Hurricane Sandy. The building’s owners retained Strike Force to provide additional security guards in the building and to control access to the lobby, since the lack of electricity prevented the electronic access card readers on the building’s entrances from working.

Plaintiff asserted that, upon returning to her building, defendant Ubogu, a Strike Force security guard, advised her that it was “okay” to use her cell phone to light her way up the staircase since her flashlight was no longer working. She further asserted that Ubogu turned his own flashlight on, and guided her to the doorway of the staircase and up the first flight of stairs. When she reached the landing, Ubogu turned his flashlight off, leaving her in the dark. When she then attempted to find the stairway to continue up, she instead fell down the flight of stairs she had just ascended.

Contrary to plaintiff’s contention, Ubogu did not voluntarily assume a duty of care toward her by any negligent words or acts inducing reliance (see Heard v City of New York, 82 NY2d 66, 71-72 [1993]). Obogu’s casual response of “okay,” in response to plaintiff’s suggestion that she use her cell phone to light her way up the stairs, did not amount to a “deliberate representation for purposes of determining whether an action in negligence has been established” (id. at 74-75; see Ferrari v Bob’s Canoe Rental, Inc., 143 AD3d 937, 939 [2d Dept 2016]).

*598 Furthermore, Ubogu’s conduct in shining his flashlight up the first flight of stairs did not alter the fact that plaintiff had intended to climb the steps in the first place, and was already using her cell phone for light. Accordingly, Ubogu’s actions did not place plaintiff “in a more vulnerable position” than she would have been in had he done nothing (Murshed v New York Hotel Trades Council & Hotel Assn. of N.Y. City Health Ctr., Inc., 71 AD3d 578, 579 [1st Dept 2010]).

Concur — Acosta, J.P., Mazzarelli, Manzanet-Daniels, Gische and Kahn, JJ.

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Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered March 9, 2016, which, to the extent appealed from as limited by the briefs, granted the motion of defendants Strike Force of New Jersey, Inc. (Strike Force) and Jonathan Ubogu for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff was injured when she fell down a darkened staircase in her apartment building, which was left without electricity in the aftermath of Hurricane Sandy. The building’s owners retained Strike Force to provide additional security guards in the building and to control access to the lobby, since the lack of electricity prevented the electronic access card readers on the building’s entrances from working.

Plaintiff asserted that, upon returning to her building, defendant Ubogu, a Strike Force security guard, advised her that it was “okay” to use her cell phone to light her way up the staircase since her flashlight was no longer working. She further asserted that Ubogu turned his own flashlight on, and guided her to the doorway of the staircase and up the first flight of stairs. When she reached the landing, Ubogu turned his flashlight off, leaving her in the dark. When she then attempted to find the stairway to continue up, she instead fell down the flight of stairs she had just ascended.

Contrary to plaintiff’s contention, Ubogu did not voluntarily assume a duty of care toward her by any negligent words or acts inducing reliance (see Heard v City of New York, 82 NY2d 66, 71-72 [1993]). Obogu’s casual response of “okay,” in response to plaintiff’s suggestion that she use her cell phone to light her way up the stairs, did not amount to a “deliberate representation for purposes of determining whether an action in negligence has been established” (id. at 74-75; see Ferrari v Bob’s Canoe Rental, Inc., 143 AD3d 937, 939 [2d Dept 2016]).

*598 Furthermore, Ubogu’s conduct in shining his flashlight up the first flight of stairs did not alter the fact that plaintiff had intended to climb the steps in the first place, and was already using her cell phone for light. Accordingly, Ubogu’s actions did not place plaintiff “in a more vulnerable position” than she would have been in had he done nothing (Murshed v New York Hotel Trades Council & Hotel Assn. of N.Y. City Health Ctr., Inc., 71 AD3d 578, 579 [1st Dept 2010]).

Concur — Acosta, J.P., Mazzarelli, Manzanet-Daniels, Gische and Kahn, JJ.

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Bluebook (online)

2017 NY Slip Op 3070, 149 A.D.3d 597, 50 N.Y.S.3d 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parke-v-st-owner-lp-nyappdiv-2017.

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