### De Clef Pineiro v American Museum of Natural History 2024 NY Slip Op 31565(U) May 3, 2024 Supreme Court, New York County Docket Number: Index No. 157391/2021 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. 157391/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 05/03/2024

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### SUPREME COURT OF THE STATE OF NEWYORK NEW YORK COUNTY PRESENT: HON. SHLOMO S. HAGLER Justice 

### -------------------X

JOHN DE CLEF PINEIRO Plaintiff,

- V - THE AMERICAN MUSEUM OF NATURAL HISTORY, Defendant. 

### -------------------X PART
INDEX NO. 157391/2021 MOTION DA TE 05/30/2023 MOTION SEQ. NO. 001 DECISION + ORDER ON MOTION 17

The following e-filed documents, listed by NYSCEF document number (Motion 001} 23, 24, 25, 26, 27, 28,29, 30,31, 32, 33,34,35, 36,37,40,41,42,43,44,45,46,47,48,49, 50, 51,52,53,54, 55,56,57, 58,59,61,62,63,64,66 were read on this motion to/for JUDGMENT-SUMMARY 

### In this motion sequence, defendant American Museum ofNatural History ("AMNH")
moves for summaryjudgment dismissing plaintiffJohn De ClefPineiro's complaint. Plaintiff opposes and cross-moves to amend the bill ofparticulars. 

### I. Facts Plaintiff'sDeposition This action arises out ofan incident that occurred onApril 23, 2021 at the American Museum ofNatural History inManhattan (Plaintiffs EBT [NYSCEF Doc. No. 30] at 17). Specifically, the accident occurred ona "subterranean staircase leading into the ground floor of the museum" (id.). The staircase leads downward into the museum from the 81st Street subway station (id at 36). Onthe day ofthe subject accident, plaintiffJohn De ClefPineiro was entering the museum because he had an appointment for his COVID-19 vaccine (id at 21). Atthat time, the museum was serving as a vaccination site and the day ofthe subject accident was the first day it was open for thatpurpose (id. at 21-22). Plaintiffwalked from his apartment to get to the

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2 of 12 museum, and he noticed signs whenhe approached the museum 

### (id. at 33). There were several signs affixed to the fencing around the museum property pointing towards the subject vaccination site 

### (id. at 34-35). Plaintifffollowed the signs which directed him pastthe main
museum entrance and towards the entrance through the 81st Street subway station 

### (id. at 35-36). Plaintiffhad been inthis station at least once before that he could remember, in approximately 2010 

### (id. at 37). However, plaintifftestified that the first time he had used the subject staircase
was the day ofthe accident 

### (id. at 38). Plaintiffwas wearing a mask and a face shield and was also wearing his glasses 

### (id.). Plaintifftestified that there was a sign indicating the entrance to the vaccination site "[r]ight at the top ofthe stairs ofthe subway entrance leading downstairs to a long corridor" 

### (id. at41). Plaintiffdescended the subway entrance stairs from the street level 

### (id. at 42). To enter the museum from the subway station, there is a row ofbrass doors 

### (id. at43). There was a guard standing by the doors, to whom plaintiffshowed his paperwork and the guard directed him throughthe middle brass door and down the stairs 

### (id. at 44, 46). Plaintifftestified that when he first walked through the center set ofbrass doors, there was a wide and long flight ofstairs leading downward 

### (id. at 49). He described the lighting as "bright" 

### (id.). Plaintiffbeganto descend the staircase 

### (id. at 50). Plaintifftestified that the wide staircase is broken up into sections by handrails 

### (id. at 54). Plaintifftestified that he remembered at least two handrails demarcating the middle section ofthe staircase which he was descending, but soon after, he said thathe remembered a handrail on his right side only 

### (id. at 54, 56). Plaintifftestified that he at first did not notice the handrails oneither side ofthe section ofstaircase because the doors led himright down the center ofthe section 

### (id. at 54). The doors did not immediately lead into the

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3 of 12 staircase; there was a platform before the stairs began 

### (id. at 55). The stairs were made of"lightcolored stone" andthere were 14 steps (id at 56). Plaintiffwas asked why he didn'tproceed to either ofthe handrails before descending the staircase. He responded, "Itwasjust a matter oftrajectory, going throughthe doors, andthen they opened upto the centerportionofthe staircase, so that [was] how I was proceeding directly" (id). Plaintifftestified thathe believedhe was proceeding downthe stairs "careful[ly], not fast" (id. at 58). He was notrushing because he was early to his appointment (id). He also testified that he was looking down as he began to descend the steps (id at 58-59). The accident occurred whenplaintiffwas nearthe bottom ofthe steps (id at 61). Plaintiff testified that he noticed a guard waving to him 

### (id.). After seeing the guard wave in his direction, plaintifftestified thathe looked up and "wasno longer looking down" butremained going down the stairs atthe samepace 

### (id.). Describing the accident, plaintifftestified as follows: I proceeded downthe steps. As I thought, I was proceeding all the way from the top, and my foot, left foot, slipped outfrom under me. I was still looking atthe guard when this was happening. My foot slipped out from underme, whichwas a bit startling to me. 

### I didn't know where it was going. 

### It did land on another level below. I did not know whatlevel that was. Whether it was yet another step orthe ground floor, butby then, I had lost my balance. I was-my body was being propelled forward and all this tookplace withintwo seconds or so. 

### Id at 65. He testified that he fell on his shoulder onthe floor 

### (id. at 70). He testified that within a few seconds, people were crowding around him and he was helped into a chair 

### (id. at 74-75). While he was sitting in the chair he spoke to Mr. Raphael Payne who created an incidentreport 

### (id. at 75, 77). Plaintiffdid not notice any wateror debris on the steps 

### (id. at 66). He also testified that in hindsight, he knewthat there was a colored strip at the very last step that was a

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4 of 12 different color than the stairs and the rest ofthe floor, but he did not realize that at the time ofthe fall (id at 81). AMNHDeposition On behalfofthe museum, Raphael Payne ("Payne") appeared for a deposition. Payne
was employed by the museum as the Senior Manager ofFire and Life Safety at the time ofthe deposition (Payne EBT [NYSCEF Doc. No. 32] at 8). He testified that whenplaintifffell, Payne
was at the lower level "overby where the security personnel who mans the subway station" stood (id at 22). He continued that "all the time I was in that vicinity" (id). He testified "Myjob inparticular was to watch everybody who came into the building, because I could be called at any given time, and I was in a position where I wasjust standing there" (id at 29). There was a station at the bottom ofthe subject staircase where security guards would checkpeople's bags (id at 30). Payne testified that once an individual reached the bottom ofthe staircase, ifthey had
a bag, they would "be alerted to stop at the desk where security personnel would checktheir bag" (id). Payne testified that he oversawthe security personnel who were with him at the vaccination site. Inparticular, he directed them to "fact check and provide the guidance ofpeople where they should go" (id at 27). When asked ifhe saw what caused the plaintiffto fall, Payne testified that it appeared to him that plaintiff"misstepped" (id at 36). Specifically, Payne testified that "his footing caused him to miss the bottom ofthe stair. Hejustmissed the stair completely, that is how it looked to me" (id) Payne testified that he made the incident report for the subject accident (id at 40). On the incidentreport, he wrote that the plaintiff"misstepped at the bottom stair atthe subway entrance" and testified that he based this offhis perception ofplaintiffs fall (id at 42). Payne did

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5 of 12 not know ofany other falling incident that occurred onthe subject set ofstairs besides the subject accident and two otherincidents, but said it was possible (id at 58). II. Procedural History Defendant filed this motion for summaryjudgmenton May 30, 2023 (NYSCEF Doc. No. 23). On August 3, 2023, plaintifffiled a cross-motion to amend the bill ofparticulars to add a violation ofthe 1922 NYC Building Code (NYSCEF Doc. No. 49). Oral argument onthis motion and cross-motion was held onNovember 27, 2023, whereby the Court denied the crossmotion to amend the bill ofparticulars as the staircase was not a type ofstaircase defined in the 1922 Building Code (see NYSCEF Doc. Nos. 64, 66). III. Summary Judgment Standard "(T]he proponent ofa motion for summaryjudgmentmust demonstrate thatthere are no material issues offact in dispute, and that it is entitled tojudgment as a matter oflaw" (Ostrov v Rozbruch, 91 AD3d 147, 152 [1st Dept 2012]). "Failure to make such prima facie showing requires denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers" (Alvarez v Prospect Hasp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Once a movant has met this burden, "theburden shifts to the opposing party to submitproofin admissible form sufficient to create a question offact requiring a trial" (Kershaw v Hospital far Special Surgery, 114 AD3d 75, 82 [1st Dept2013]). "[I]t is insufficient to merely set forth averments offactual or legal conclusions" (Genger v Genger, 123 AD3d 445,447 [1st Dept 2014], quoting Schiraldi v US. Min. Prods., 194 AD2d 482,483 [1st Dept 1993]). Finally, evidence mustbe "construed inthe light most favorable to the one moved against" (Kershaw, 114 AD3d at 82). Therefore, ifthere is any doubt as to the existence ofa triable fact, the motion for summaryjudgmentmustbe denied (Rotuba Extruders v Ceppos, 46 NY2d 223,231 [1978]).

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6 of 12 IV. Discussion A substantial section ofthe parties' papers is used to argue about the staircase's compliance withthe New York City Building Code. This issue was previously decided at oral argument onNovember 27, 2023 when the Court determined the inapplicability ofthe 1922 Code to these stairs because they do not fit within that code's definition of"interior stairs" (see NYSCEF Doc. No. 66 at 13). Although ithas been determined that AMNH cannot be liable under a violation ofthe Building Code, AMNH can still be liable under common lawtheories of negligence as the owner ofthe subject staircase (see Branch v SDCDiscount Store, Inc., 127 AD3d 547, 547 [1st Dept 2015]). "In order to prevail on a negligence claim, a plaintiffmust demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breachthereof, and (3) injury proximately resulting therefrom (Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016] [internal quotation marks and citation omitted]). It is a building owner's "normal duty to maintain the premises in a safe manner" (Marcinak v Technical Mech. Servs., Inc., 17 AD3d 140, 140 [1st Dept 2005]). AMNH "had a common-law duty, as occupier ofthe premises, to maintain the staircase in a reasonably safe condition, in viewofall the circumstances" (Branch, 127 AD3d at 547). Plaintiffadvances three theories ofcommon-lawnegligence, one ofwhich was rejected at oral argument (see NYSCEF Doc. No. 66 at 29-30 [rejecting the argument that defendants were negligent whenthe AMNH security guard "distracted"plaintiffbecause "that would openup a Pandora's box for liability"]). The first remaining argument is that the stairs were slippery which caused the plaintiffto fall. Defendant argues thatthere was no hazardous condition onthe steps alleged by plaintiff, as there was no debris orphysical defect onthe step (see Memo ofLaw [NYSCEF Doc. No. 25] at

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7 of 12 10). Defendant further argues that the stairs are made oftravertine, a type ofstone which is inherently a non-slip material (see id.). It must first be noted that the First Departmenthas held that the mere "inherently slippery" condition ofa floor surface is not an actionable defect to maintain a cause ofaction for negligence (Waiters v Northern Trust Co. of New York, 29 AD3d 325, 326-27 [1st Dept 2006];
see also Sims v 3349 HullAve. Realty Co., LLC, 106 AD3d 466,467 [1st Dept 2013] [finding
worn marble tread that caused plaintiffto slip on staircase was not an actionable defect]). Even if
an inherently slippery staircase could support a cause ofaction for negligence, AMNH has met its prima facie burden by providing an expert affidavit from a professional engineer, David Behnken, P.E. who went to the accident site and inspected the subject staircase and stair treads (see Behnken Report [NYSCEF Doc. No. 34] at 1-2). Behnken reiterated that the stone treads are "slip-resistant in accordance with standard custom and practice" (id. at 4). Behnken conducted "wet dynamic slip resistance testing along the stairway's lower treads inthe area ofMr. De Clef Pineiro's fall" and said this test was done in accordance with an approved standard for field slip resistance testing set forth by the American National Standards Institute (id. at 2-3). Behnken affirmed that this test determined the wet coefficient offriction on the stairs measured at 0.58, which is well above the minimum standard of0.42 and as such, the stair material "provides a high slip resistance that meets the standard ofcare for walking surfaces" (id. at 4). This evidence submitted by the defendant's expert along with plaintiffs testimony that there was no visible debris or defect on the steps showsprima facie that there was no defective or slippery condition in existence when plaintifffell (see Silber v Sullivan Props., L.P., 182 AD3d 512, 512-13 [1st Dept 2020]).

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8 of 12 In opposition, plaintifffails to raise a triable issue offact regarding a defect on the staircase. Plaintiffs expert, David Jimenez, R.A., contends that the wet coefficient offriction test used by Behnken was not an accepted test to determine whether a staircase conforms with the Building Code (see Jimenez Report [NYSCEF Doc. No. 41] 

### ,i,i 8-9). Ithas been determined that conformity with a Building Code is no longer an issue inthis motion and the remaining question is whether AMNH is liable under a common-lawnegligence standard. Even so, the First Department has recognized coefficient offriction tests to be acceptable standards to measure the slipperiness ofa staircase when the expert references a "specific standard in asserting that a [ minimum coefficient offriction value] is the commonly accepted value for a non-slip surface" (Sarmiento v C&EAssocs., 40 AD3d 524, 526 [1st Dept 2007] [internal quotation marks omitted]; see also Ridolfi 

### v Williams, 49 AD3d 295,295 [1st Dept 2008]). Here, Behnken references the ANSI A326.3-2017 standard that determined that a coefficient offriction value of 0.42 or above provides high slip resistance (Behnken Report at 4). Furthermore, Jimenez does not provide a competing test to showthat the staircase was too slippery under accepted standards. Jimenez simply says he "felt the tread upon which Mr. De ClefPineiro slipped with [his] hand" (Jiminez Report at 

### ,i 6). Jimenez says this is standard practice to determine whether stairs comply with Building Code requirements, but as previously mentioned, compliance with the Building Code is no longer a relevant standard for the purposes ofthis motion. The fact thatJimenez felt the stairs withhis hand and it felt slippery does not create an issue offact competing with the results ofBehnken's coefficient offriction test (see Silber, 182 AD3d at 513 ["[P]laintiffs expert opinion was conclusory and speculative, since he did not take measurements ofthe coefficient offriction ofthe stairwell or conduct any other tests" to showthe existence of"ahazardous condition"]). As such, plaintifffailed to raise a

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9 of 12 triable issue offact that the stairs were slippery or contained some other actionable defectto support a denial ofAMNH's motion for summaryjudgment. The next theory ofnegligence profferedby the plaintiffis that the staircase created an "optical confusion." Plaintiffasserts that the staircase created an optical confusionbecause the layout and coloring ofthe stairs made it difficult to discern where the staircase began and ended 

### (see Aff. in Opposition [NYSCEF Doc. No. 40] at~41). In support ofits motion, defendant argues that there was no optical confusion as plaintiffhimselftestified the lighting was good, and photographs show a clear demarcation ofwhere the stairs end in the form ofa thick brown line at the foot ofthe stairs 

### (see Memo ofLaw at 13; BehnkenPhotos [NYSCEF Doc. No. 34]). Furthermore, Behnken affirmed inhis reportthat Thepresence, location, and color ofthe handrails, as well as the contrast in colors and textures between the stone treads and the terrazzo lower landing/lower level ofthe museum, provided numerous sharp visual cues ofthe stairway configuration. As such, the presence and location ofthe lowertreads and lower landing are open and obvious, readily apparent to persons attentive to their surroundings, and safe. BehnkenReport at 5. Indeed, the photographs taken by Behnkenduring his inspection showthat there are many visual cues that would prevent optical confusion and assist a user intraversing the staircase. First, the wide staircase is sectioned offby brass handrails that start atthe top step and end at the bottom step. Further, the photos show a thick brown line immediately before and after the beginning and end ofthe staircase to provide a color contrast visual cue as to where the steps begin and end. Finally, the more porous-looking travertine stairtreads are a visibly different material than the smooth and shiny tiled floor. Defendantthus established its entitlementto summaryjudgmentby submitting evidence thatthe stairs "were not dangerous conditions as a matter oflaw through photographic evidence" showing thatthe stairs were demarcated with

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10 of 12 thickbrown lines contrasting with the color ofthe stairs and the floor (Pinkham v West Elm, 142 AD3d 477,477 (1st Dept 2016]; see also Kamps vNew York City TransitAuth., 89 AD3d 421, 422 (1st Dept 2011]; Hall v New Way Remodeling, Inc., 168 AD3d 620, 620 [1stDept2019] ["Defendant also showedthat the alleged defect was open and obvious, and not inherently dangerous, by submitting photographs showing that the door saddle was readily observable"]). In opposition, plaintifffailed to raise a triable issue offact. Plaintifftestified that he had difficulty discerning where the stairs ended, and his expert Jiminez testified that the configuration ofthe stairs created a risk ofoptical confusion (see Ex. F to Plaintifrs Opp.; Jiminez Report at 

### 114). However, this theory ofoptical confusion "was contradicted by the expert's own photographs" showing that the stairs had clearly demarcated thickbrown lines at the beginning and end of the steps and the presence ofthe handrails to serve as visual cues for where the stairs began and ended (Hall, 168 AD3d at 620; Ex. A to Jiminez Report [NYSCEF Doc. No. 41]; see also Martin v City ofN.

### Y., 82 AD3d 653,654 [1st Dept 2011] ["Although plaintiffalleged that a curb onthe property caused her fall and that the curb posed an optical confusion, the photographic evidence is notsufficient to defeat the motions"]). Similarly, plaintifftestified that he went backto the subject staircase after the accident and took photos (see Plaintiff's EBT at 158). He testified thatthe photos taken ofthe staircase that day look "very similar
... ifnot identical" to howthe stairs looked onthe date ofthe accident (id.). These photos also showthe brass handrails and the thick brown line that is visible from the viewpoint ofsomeone traversing down the stairs, thereby contradicting his argument that the stairs create a risk ofoptical confusion (see Ex. J to Memo ofLaw [NYSCEF Doc. No. 35]) Therefore, defendant met its burden on summaryjudgmentby providing sufficient evidence to demonstrate that there was no actionable defect onthe stairs. Inopposition,

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11 of 12 plaintiffs testimony andhis expert's report failed to raise a triable issue offact precluding summaryjudgmentin view ofthe photographs they submitted. "Because the alleged defects are not actionable, the issue ofwhether defendant had notice
. is irrelevant" 

### (Rubin v Trustees of Columbia Univ. in the City of New York, 212 AD3d 544,545 [1st Dept 2023]). However, even ifthe issue ofnotice remained relevant, plaintifffailed to raise
a triable issue offact to preclude a granting·ofsummaryjudgmentto AMNH. The parties provided evidence inthe form oftwo incident reports and videos ofprevious falls on the subject staircase occurring inthe five years priorto plaintiffs accident 

### (see Ex. B to Plaintiff's Opp. [NYSCEF Doc. No. 42]). However, plaintiffdid not submit affidavits ofthe man orwoman who
were the subjects ofthe priorfalls, and Payne testified that he did not recall seeing or writing the incident report for either priorfall 

### (see Payne EBT at 51-53). Without any testimony from
someone with knowledge, the statements contained in these incident reports constitute inadmissible hearsay 

### (see Vaughn v 

### Westfield, LLC, 216 AD3d 849,851 [2d Dept 2023]). Evenifthe court were to consider the statements contained within the incidentreports, it would show that the incidents were not substantially similar to plaintiff's accident to constitute sufficient constructive notice and create a triable issue offact 

### (see Mallen v

### Farmingdale Lanes, LLC, 89 AD3d 996, 997 [2d Dept 2011] ["[T]he plaintiff's contention that incidentreports regarding prior accidents raised a triable issue offact
... is speculative, as there was no evidence thatthose accidents were similar in nature to plaintiff's accident"]). The videos ofboth prior accidents show the subjects ofthe prior accidents falling on the left side ofthe staircase rather than the center section where plaintifffell. Furthermore, both incident reports state that the patrons said they tripped and misstepped onthe stairs, not that they slipped or were confused about where the stairs ended as the plaintiffhere claims 

### (see Ex. B to Plaintiffs Opp).

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12 of 12 Accordingly, even ifthe court couldconsiderthe contents ofthe incident reports, those contents do not describe similarenough accidents to plaintiff's as to raise a triable issue offact regarding the defendant's constructive notice ofan allegedly dangerous condition on the stairs. Defendant is therefore entitled to summaryjudgment dismissing plaintiff's complaint against it. 

### V. Conclusion Accordingly, it is ORDERED that defendant's motion for summaryjudgment is granted. The clerk shall enterjudgmentaccordingly.

SHi?OMO S. HAGLER, J.S.C. CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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