Rivera v. Americo

Appellate Division of the Supreme Court of New York

Rivera v. Americo

9 A.D.3d 356, 780 N.Y.S.2d 27, 2004 N.Y. App. Div. LEXIS 9372

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

DecidedJuly 6, 2004

StatusPublished

Cited by6 cases

This text of 9 A.D.3d 356 (Rivera v. Americo) 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

Rivera v. Americo, 9 A.D.3d 356, 780 N.Y.S.2d 27, 2004 N.Y. App. Div. LEXIS 9372 (N.Y. Ct. App. 2004).

Pincite

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Bunyan, J.), entered December 20, 2002, which, upon a jury verdict on the issue of liability, is in favor of the defendants and against him.

Ordered that the judgment is reversed, on the law, the complaint is reinstated, and a new trial is granted, with costs to abide the event.

The plaintiff and his companion lived in an apartment in a house owned by the defendants in Peekskill. To gain access to the apartment, the plaintiff had “to go up a driveway going through the backyard and go up a flight of steps [on the] back deck.” This stairway had three steps and no railing. On April 17, 2000, the plaintiff allegedly was injured when one of the steps collapsed.

The plaintiffs expert testified that a handrail was required pursuant to section 713.1 (f) (1) of the State Uniform Fire Prevention and Building Code (see former 9 NYCRR 713.1 [f] [1]), and concluded that a handrail would have helped the [357]*357plaintiff to maintain his balance, rather than pitch forward onto the ground. In charging the jury, the trial court, inter alia, stated: “This Court has determined as a matter of law that the lack of a handrail at the subject premises or subject steps is not a substantial factor in bringing about the accident and should not be considered by you to be a substantial factor.” The jury ultimately found that the defendants were negligent in the maintenance of the stairway, but that such negligence was not a proximate cause of the plaintiffs accident.

“A statute or regulation should be charged where there is evidence in the record to support a finding that the statute was violated (Wilmot v City of New York, 73 AD2d 201) and the statute or regulation is applicable to the facts presented (Enea v Kuhn, Smith & Harris, 39 AD2d 908)” (Gamar v Gamar, 114 AD2d 487, 489 [1985]). The failure to charge a statutory violation warrants reversal where a reasonable view of the evidence could support the finding that such violation was a proximate cause of the accident (see Cranston v Oxford Resources Corp., 173 AD2d 757, 758-759 [1991]; Koperda v Town of Whitestown, 224 AD2d 944, 945 [1996]). In the present case, a reasonable view of the evidence could support the finding that the defendants’ failure to provide a handrail on the stairway was a proximate cause of the plaintiffs accident (see Gonzalez v Metropolitan Life Ins. Co., 269 AD2d 495 [2000]). Accordingly, we reverse the judgment and grant a new trial.

In light of the foregoing, the parties’ remaining contentions are academic. Santucci, J.P., Goldstein, Luciano and Mastro, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Bunyan, J.), entered December 20, 2002, which, upon a jury verdict on the issue of liability, is in favor of the defendants and against him.

Ordered that the judgment is reversed, on the law, the complaint is reinstated, and a new trial is granted, with costs to abide the event.

The plaintiff and his companion lived in an apartment in a house owned by the defendants in Peekskill. To gain access to the apartment, the plaintiff had “to go up a driveway going through the backyard and go up a flight of steps [on the] back deck.” This stairway had three steps and no railing. On April 17, 2000, the plaintiff allegedly was injured when one of the steps collapsed.

The plaintiffs expert testified that a handrail was required pursuant to section 713.1 (f) (1) of the State Uniform Fire Prevention and Building Code (see former 9 NYCRR 713.1 [f] [1]), and concluded that a handrail would have helped the [357]*357plaintiff to maintain his balance, rather than pitch forward onto the ground. In charging the jury, the trial court, inter alia, stated: “This Court has determined as a matter of law that the lack of a handrail at the subject premises or subject steps is not a substantial factor in bringing about the accident and should not be considered by you to be a substantial factor.” The jury ultimately found that the defendants were negligent in the maintenance of the stairway, but that such negligence was not a proximate cause of the plaintiffs accident.

“A statute or regulation should be charged where there is evidence in the record to support a finding that the statute was violated (Wilmot v City of New York, 73 AD2d 201) and the statute or regulation is applicable to the facts presented (Enea v Kuhn, Smith & Harris, 39 AD2d 908)” (Gamar v Gamar, 114 AD2d 487, 489 [1985]). The failure to charge a statutory violation warrants reversal where a reasonable view of the evidence could support the finding that such violation was a proximate cause of the accident (see Cranston v Oxford Resources Corp., 173 AD2d 757, 758-759 [1991]; Koperda v Town of Whitestown, 224 AD2d 944, 945 [1996]). In the present case, a reasonable view of the evidence could support the finding that the defendants’ failure to provide a handrail on the stairway was a proximate cause of the plaintiffs accident (see Gonzalez v Metropolitan Life Ins. Co., 269 AD2d 495 [2000]). Accordingly, we reverse the judgment and grant a new trial.

In light of the foregoing, the parties’ remaining contentions are academic. Santucci, J.P., Goldstein, Luciano and Mastro, JJ., concur.

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Bluebook (online)

9 A.D.3d 356, 780 N.Y.S.2d 27, 2004 N.Y. App. Div. LEXIS 9372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-americo-nyappdiv-2004.

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