### 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

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

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

PATRICIA LASCH, Plaintiff,
-vWESTBETH CORPORATION HOUSING DEVELOPMENT FUND COMPANY, INC., Defendant. 

# -------------------X PART
INDEX NO. 151319/2019 MOTION DATE 02/04/2022 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION 17

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 Inthis negligence action, defendant Westbeth Corporation Housing DevelopmentFund Company, Inc. ("defendant") moves for summaryjudgmentpursuantto 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, plaintifffell in a stairwell between the first floor and the cellar ofthe premises and sustained injuries (id. 

### ,i,i 7, 14). Plaintiffalleges that an improperly installed handrail and inadequate lighting were the causes ofher fall (id i!l4). Plaintifftestifies that after she went on a walk withher daughter, she and her daughter
saw signs for a flea marketthat was being held in the basement ofher apartmentbuilding (deposition transcript, NYSCEF Doc No. 40 at 27). Plaintiffsays that she was walking down the stairsto the basement while holding the left side handrail (id at 34-35). She states that the

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2 of 6 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). Plaintifftestifies that the banister she was holding onto ended, and all she saw was gray-painted flooring ahead ofher, leading herto believe thatthe 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 ofthe stairs] into a cement wall" and hit her head directly into the wall, feeling sharp pains inher head, left wrist, and back (id at 35 lines 8-13). As a result ofthe fall, plaintiff suffered a gash onherhead, fractured ribs, and a fractured leftwrist (NYSCEF Doc No. 40 at 61-62). Plaintiffsubsequently received spinal infusions for pain and reconstructive surgery on her wrist and attended physical therapy (id. at 64-65, 67). Currentphotographs ofthe stairwell showthe gray-painted stairs (with the last two stairs
nowpainted with a yellow safety stripe) and gray-painted landing (NYSCEF Doc No. 54 at 3). The photographs also showthat the right-side handrail extends to the last stair while the left-side handrail stops atthe secondto last step before the landing (id). Photographs ofa light meter on the bottom step offered by the plaintiffshow a measurement of0.89-foot candles inthe most lit portion ofthe step, and a measurement of0.27-foot candles in the dimmestportion ofthe step (id at 5). Photos offered by the defendant show a measurement of 1.21 foot-candles inthe same stairwell (NYSCEF Doc No. 49 at 15). Discussion "In orderto prevail on a negligence claim, a plaintiffmust demonstrate (1) a duty owed by the defendantto the plaintiff, (2) a breach thereof, 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

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3 of 6 premises in a safe manner" Marcinak v Technical Mech. Servs., Inc., 17 AD3d 140, 140 [1st Dept 2005]). Neitherparty disputes that defendant owed a duty ofcare to plaintiffto maintain a safe building; hence, the court evaluates whether defendantbreached that duty. Defendant moves for summaryjudgmenton the basis that no duty ofcare was breached. Specifically, defendant argues that the stairwell without a handrail extending to the bottom ofthe landing and the lighting conditions did not create dangerous or defective conditions. Essential indetermining whether defendant breached its duty ofcare is the classification ofthe subject stairwell, as the classification determines the standards ofmaintenance and the applicability ofBuilding Code sections. Defendant relies on its expert, Michael Cronin, a licensed professional engineer and consultant, to showthat itdid not breach its duty ofcare (defendant's expertreport, NYSCEF Doc No. 49). Cronin opines thatthe 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 ofcare. (NYSCEF Doc No. 49 at 5). In opposition, plaintiffrelies onher expert, Robert T. Fuchs, a licensedprofessional engineer and consultant (plaintiffexpert report, NYSCEF Doc No. 52). According to Fuchs, "the classification ofthe stair as an access stairby defendant's expert is not supported by the evidence," (NYSCEF DocNo. 52 

### ,i 19). Plaintiff's expert contends that the subject stairwell is an exit stairwell because there is a signposted onthe door designating the stairwell as a "construction exit" (id. 

### ,i,i 16, 19). Though the experts disagree onthe classification ofthe subject staircase, ultimately, "the question [of] whether Building Codes apply to a structure is an issue ofstatutory interpretation that the court should determine" as a matter oflaw (Lopez v Chan, 102 AD3d 625, 626 [ lst Dept 2013]; see also Gaston vNew York City HousingAuth., 258 AD2d 220,224 [1st Dept 1999]

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4 of 6 ["Supreme Courterred in submitting the issue to thejury and failing to determine, as a matter of law, that the staircase was notrequired to comply with section 27-376 ofthe Code"]). Here, the subject staircase is not an interior staircase. Aninterior stairway is defined as a stairway that leads to a required "exit" (see Admin. Code ofthe City ofNew York§ 27-232; Mansfieldv Dolcemascolo, 34 AD3d 763, 764 [2d Dept2006]; Schwartz v Hersh, 50 AD3d 1011, 1012 [2d Dept 2008]; Remes v 513 West 26th Realty, LLC, 73 AD3d 665, 665 [lst Dept 201

### OJ). Stairwell "H" at issue here runs between the lobby ofthe building and the basement level, "and does not lead to any entrance or exit from the building" (Aff. ofMatthewRussas [NYSCEF Doc. No. 47] at,7). As it is not an interior staircase, the portions ofthe Building Code governing interior staircases are not applicable (see Mansfield, 34 AD3d at 764; Walker v 127 West 22ndStreet Assocs., 281 AD2d 539, 540 [2d Dept 2001]). Defendant argues that because there were no Building Code violations, it did notbreach its duty ofcare (Memorandum ofLaw, NYSCEF Doc No. 46 at 10). In support ofits argument, defendants provide an affidavit from Matthew Russas, the Registered Managing Agent and Building Manager ofthe 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 statementby annexing the Certificate oflnspectionVisits (Russas Aff., ,, 1, 11, 12, 13; see Certificate oflnspections, NYSCEF Doc No. 48). In response, plaintiffargues that defendant can still be liable under a commonlawduty (Memorandum of Lawin Opposition, NYSCEF Doc No. 55, 17, citing, e.g. Branch v SDCDiscountStore, Inc., 127 AD3d 547,547 [1st Dept 2015]). The court agrees. Evenifthe 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

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5 of 6 condition, inview ofall the circumstances, including the likelihood ofinjury to others, the seriousness ofthe injury, and the burden ofavoiding the risk" (Branch, 127 AD3d at 547 [internal quotation marks and citation omitted]). As such, the defendantmay still be liable under
a theory ofcommon law negligence. Plaintiffs and defendant's experts disagree onkey factual findings thatpreclude summaryjudgment. The first is onthe issue ofillumination. Plaintiffs expert concludes that the bottom ofthe stairwell had inadequate illumination, causing difficulty in distinguishing the end ofthe bottom step, and that the lack ofany marking painted along the tread nosing that would distinguish itfrom the landing compoundedthe 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 whenthe light meter was positioned toward the innerportion ofthe bottomtread" 

### (id 

## ,r 14). Conversely, Defendant's expert states that he "observed at his inspectionthat the illuminationwas sufficient for persons to reasonably observe all points along their intended path oftravel" and concludes that "lighting inthe subject stairway was sufficient for persons to make reasonable observations along their intended path oftravel. The lighting violated no known applicable code, standard orordinance" (NYSCEF Doc No. 49 at 6). Defendant's expert stated that although there is no minimum illuminationrequirement in the Building Code for access stairs, the lighting atthe stairway measured 1.21 foot-candles, which is above the 1 foot-candle minimum requirement even ifthe stairs were classified as interior stairs (id. at 5, 15). The experts' opposing conclusions about whetherthere was adequate illumination inthe stairwell creates a disputed material fact. "Conflicting expert affidavits raise issues offact and credibility that cannotbe resolved on a motion for summaryjudgment" (Bradley v Soundview Healthcenter,

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6 of 6 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 offact precluding summaryjudgmentwhen defendants' expert measured a 0.625-inch height differential while plaintiff's expert measured thatheight differential to be 1.063 inches]). Lastly, the experts disagree on the sufficiency ofthe handrail placed along the subject staircase. Plaintiffs expert concludes thatthe lack ofa continuing handrail at the bottom ofthe left side ofthe stairs is an "inherent safety hazard" and "does not conform to fundamental principles ofstair design and construction, generally good and accepted practice, orbuilding code requirements" (NYSCEF Doc No. 52 

### ,i 24[a]). Inresponse to plaintiff's expertreport, defendant's expert disagrees and opines that "[t]he handrails present on the subject stairway met the requirements ofthe New York State Multiple Dwelling Law" (NYSCEF Doc No. 49 at 5-6). The experts dispute as to whether the discontinuous condition ofthe left handrail created a safety hazard, and thus, whether defendant breached the duty ofcare it owes to the plaintiffto maintain
a safe building. Here, because the parties' experts disagree as to whetherthe discontinuous handrail created a safety hazard breaching defendant's duty ofcare, defendant has failed to demonstrate that there are no disputed material issues offact (see Bradley, 4 AD3d at 194; Bossert vNew York UniversityLangone Med. Ctr., 213 AD3d 547,548 [1st Dept 2023]). Accordingly, it is hereby ORDERED that defendant's motion for summaryjudgmentis denied.

SHLOMO S. HAGLER, J.S.C. CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 151319/2019 LASCH, PATRICIA vs. WESTBETH CORPORATION HOUSING Motion No. 001

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