Rugieri v. Bannister

22 A.D.3d 299, 802 N.Y.S.2d 140

Opinions

Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or about July 16, 2004, which, to the extent appealable, denied plaintiffs’ motion for reargument and/or renewal, unanimously reversed, on the law, without costs, renewal granted, the judgments entered July 11, 2003 vacated, and the complaint against Terrance and Marie Bannister reinstated. Order, same court and Justice, entered on or about July 16, 2004, which granted defendant Leann Cheek’s motion for summary judgment, reversed, on the law, without costs, and the complaint against this defendant reinstated. Appeal from order, same court and Justice, entered October 24, 2003, which denied plaintiffs’ motion to vacate two orders, same court and Justice, entered June 25, 2003, and the judgments entered thereon, dismissing plaintiffs’ complaint against Marie Bannister and Terrance Bannister, unanimously dismissed as academic, without costs, in view of the foregoing.

In September 1999, the Bannisters loaned their home in Sag Harbor, Long Island to defendant Leann Cheek. Cheek, who had previously stayed at the Bannisters’ Sag Harbor home on numerous occasions, asked Dolores McAuliffe to join her for a weekend. On that Saturday evening, the women invited Joseph Rugieri and his companion James Toner to the Bannister home for dinner. The four shared the meal on the porch. Near the end of dinner, Rugieri excused himself to use the bathroom. Cheek noticed that Rugieri had gone into the kitchen, and that he had passed the bathroom, which was next to the living room.

After attempting to direct Rugieri to the bathroom, Cheek turned her attention back to the table. Cheek, McAuliffe and Toner heard a noise, and went into the house to find that Rugieri had fallen down the cellar stairs. Defendant McAuliffe described the incident as follows: “During dinner Rugieri rose from the table. I presumed he was going to the bathroom. However, he opened the door to the basement, upon which Cheek, Toner and [I] . . . called out to him that that was not the door to the bathroom, but rather to the cellar. He seemed not to hear us, appeared to be searching for something inside, probably the light, and then plunged down the cellar steps . . . to the basement floor.” As a result of his fall, Rugieri suffered facial fractures, a significant head injury, intracranial bleeds requiring bilateral craniotomies, and post-traumatic dementia.

Plaintiffs brought this action against Mr. and Mrs. Bannister, Leann Cheek and Dolores McAuliffe. The Bannisters moved for summary judgment dismissing the claims against them, and plaintiffs opposed the motion. However, plaintiffs’ counsel failed to appear for oral argument on the motion, and the court granted it on default. Plaintiffs moved pursuant to CPLR 5015 to vacate the default. In support, their counsel submitted his affirmation stating that “due to a[n] unanticipated scheduling overlap, ... he arrived ... a few minutes after the calendar call.” For corroboration, he also submitted a parking receipt that was stamped within minutes of his required appearance, and he related numerous attempts to communicate with defendants’ counsel, to no avail. The court denied the motion, finding that plaintiffs failed to show either a reasonable excuse for the default or a meritorious cause of action.

Plaintiffs then moved for reargument and/or renewal, submitting the affidavit of an engineer who had inspected the Bannisters’ cellar stairway in October 2003. This expert opined that the stairway violated several sections of the New York State Building Construction Code, cited in his affidavit, by exceeding accepted riser height differentials between stairs and positioning the handrail in a manner that did not extend to the top of the stairway. The expert also stated that the lighting of the stairwell, which consisted of one light on the basement ceiling five feet to the right of the bottom of the stairs,

Footnotes

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* was inadequate to illuminate the top portion of the stairwell. In response, Mr. Bannister submitted an affirmation asserting that he had made renovations to the home in the spring of 2002. The renovations, he said, included: “[remodeling of] the outside deck, kitchen and living room .... [In addition], [t]he door and door frame leading to the kitchen, the cellar door and door frame and lighting in both the living room and kitchen were completely changed, as was the kitchen flooring.” Notably, Bannister did not indicate any alterations which affected either the cellar stairway or the lighting in that area.

In one of the orders entered on or about July 16, 2004, the court denied plaintiffs’ motion for reargument and/or renewal of the motion to vacate their default. The court found an adequate excuse for counsel’s failure to appear, but an insufficient showing as to the merits of the action. It concluded that the expert’s affidavit, prepared after the house had been renovated, did not connect the cited defects to the condition of the house at the time of Rugieri’s injury.

In January 2004, defendant Cheek moved for summary judgment, arguing that as a guest at the Bannisters’ home, she had no duty to Rugieri. In opposition, plaintiffs asserted that Cheek was subject to liability upon her concession that she gave Rugieri directions to the bathroom, which, they asserted, led him to a dangerous area. The IAS court granted Cheek’s motion.

We reverse and reinstate the complaint against all of the defendants. It was an improvident exercise of the court’s discretion to deny reinstatement of the action against the Bannisters, as plaintiffs established both a reasonable excuse for their default and the merits of the underlying action (CPLR 5015 [a] [1]; Barasch v Micucci, 49 NY2d 594 [1980]; Perez v New York City Hous. Auth., 290 AD2d 265 [2002]). As the court recognized, counsel’s failure to appear at oral argument amounted to excusable law office failure (Perez, 290 AD2d 265 [2002], supra). Further, the engineer’s affidavit cited numerous defects in the construction and lighting of the cellar stairway. This, in conjunction with McAuliffe’s statement that Rugieri appeared to be looking for something, which she surmised to be a light switch, immediately prior to his fall, was sufficient to establish the merits of the action against the owners of the house for purposes of restoring the action (see Levy v New York City Hous. Auth., 287 AD2d 281 [2001] [lesser showing on merits to restore case as compared to defending motion for summary judgment]; Reices v Catholic Med. Ctr. of Brooklyn & Queens, 306 AD2d 394 [2003] [factual assertions in pleadings can establish merits of claim]). In accordance with our strong preference for resolving cases on their merits, we reinstate the action against the Bannister defendants (Harwood v Chaliha, 291 AD2d 234 [2002]).

We also reverse the grant of summary dismissal of the claims against defendant Cheek (Guenzberg v Heyman, 5 AD2d 766 [1958], lv denied 4 NY2d 676 [1958]). It is settled law in New York that “An . . . occupant of premises, who undertakes to direct a person unfamiliar with the surroundings to a particular part thereof, may be liable for active negligence in failing to give specific instructions, where the physical arrangement is such that a misunderstanding of the directions given would cause such person to enter a dangerous place” (85 NY Jur 2d, Premises Liability § 180, citing Guenzberg, supra). Here, the record before the motion court presented factual issues as to the exact directions Cheek gave Rugieri, and whether her guidance was sufficiently specific to lead Rugieri to the bathroom, given the proximity of a similar doorway that posed a danger. In an affidavit submitted in support of her motion for summary judgment, Cheek stated that, at the end of the meal, she heard Rugieri say he had to use the bathroom. A short time later, she “noticed [Rugieri] in the kitchen area, and he appeared to be looking for the bathroom.” Her affidavit states that she “called to him, saying, no, its back that way, as [she] pointed toward the bathroom door [,and] then turned her attention to [the guests at. the table].” By contrast, at her deposition, Cheek stated that upon seeing that Rugieri could not find the bathroom, she said “[c]ome back towards me and then this way left (indicating).”

This was Rugieri’s first visit to the Bannister house, and while he had accompanied Cheek to the cellar earlier in the evening, he was unaware of the location of the bathroom. Cheek’s knowledge of the layout of the home and the location of the basement stairway was superior. The jury could find that she knew that walking through the wrong doorway could lead an unsuspecting person to fall down the basement stairs. The jury could also conclude that Rugieri suffered grave consequences as a result of Cheek’s failure to communicate this vital information to him (id.; see also Grossel v Lehrman, 28 AD2d 1138 [1967]; Cole v Lamattina, 13 AD2d 993 [1961]).

The dissent argues that this case is different from Guenzberg because there is no evidence here that Cheek gave Rugieri “erroneous” directions. However, at this stage of the litigation, the specific nature of the directions given by Cheek has not been established. In any event, the issue is not whether the directions were “wrong” but whether they placed Rugieri at risk. Because these issues cannot be determined as a matter of law, summary judgment is not appropriate.

The dissent also argues that Guenzberg, Cole and Grossel are “outmoded,” seemingly because they were decided before the adoption of comparative negligence in New York. However, these cases remain good law and govern plaintiffs’ claim of negligence against defendant Cheek. Moreover, proportional contribution by multiple tortfeasors under CPLR article 14 does not come into consideration until there have been determinations of liability. This case has not reached that posture, and no CPLR article 14 issues are raised on this appeal. Concur—Mazzarelli, Saxe and Ellerin, JJ.

The switch for the light in the basement was at the top of the stairs.