| Babich v R.G.T. Rest. Corp. |
| 2010 NY Slip Op 05979 [75 AD3d 439] |
| July 6, 2010 |
| Appellate Division, First Department |
| Diane Babich et al., Appellants, v R.G.T. RestaurantCorp., Doing Business as Punch, et al., Respondents. |
—[*1] Mintzer Sarowitz Zeris Ledva & Meyers LLP, New York (Erika L. Omundson of counsel),for R.G.T. Restaurant Corp., respondent. Thomas D. Hughes, New York (Richard Rubinstein of counsel), for Harold Scher,respondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 2, 2009,which granted defendant R.G.T.'s motion and defendant Scher's cross motion for summaryjudgment dismissing the complaint, modified, on the law, the motion by R.G.T. denied, and thecomplaint reinstated against that defendant, and otherwise affirmed, without costs.
This personal injury action stems from the injured plaintiff's fall down an interior staircaseleading to a cellar where the restrooms were located in a building owned by Scher and operatedas a restaurant by R.G.T. Following discovery, the restaurant moved for summary dismissal ofthe claims asserted against it, on the grounds, inter alia, that plaintiffs were unable to identify thecause of the fall and could not show a defect in the staircase. The owner cross-moved forsummary dismissal on these same grounds, as well as the ground that it owed no duty to plaintiffto keep the premises safe as an out-of-possession landlord. Supreme Court granted the motionand cross motion, and dismissed the action on the ground of lack of evidence of a defectivecondition.
We agree with Supreme Court that the action against the owner should be dismissed, albeiton grounds different from those stated. A landlord is not generally liable for negligence withrespect to the condition of property after its transfer of possession and control to a tenant unlessthe landlord is either contractually obligated to make repairs or maintain the premises, or has acontractual right to reenter, inspect and make needed repairs at the tenant's expense, and liabilityis based on a significant structural or design defect that is contrary to a specific statutory safetyprovision (Johnson v Urena Serv. Ctr., 227 AD2d 325, 326 [1996], lv denied 88NY2d 814 [1996]; see McDonald v Riverbay Corp., 308 AD2d 345 [2003]; Quinonesv 27 Third City King Rest., 198 AD2d 23 [1993]). Here, the lease between the owner andthe restaurant imposes no obligation on the former to make repairs or maintain the demisedpremises. While the owner retained the right to reenter, inspect and make repairs, there is notriable issue of fact as to [*2]whether the allegedly defectivecondition involved a significant structural or design defect contrary to a specific statutory safetyprovision. Accordingly, the out-of-possession landlord is entitled to summary judgment (Torres v West St. Realty Co., 21 AD3d718, 721 [2005], lv denied 7 NY3d 703 [2006]).
We reach a different result with regard to the restaurant, which established its prima facieentitlement to summary judgment by submitting evidence that the staircase was in compliancewith the applicable building code provisions (see Administrative Code of City of NY§ 27-375 [h]). In opposition to the motion, plaintiffs submitted an affidavit from an expertarchitect who stated that he visited the building in question and observed that the existing stairwas "steel with a matte black non-slip finish that is applied to it as required by New York CityBuilding Code," but the "non-slip finish on the nosing of each tread and top platform is severelyworn off," thereby "creating an extremely slippery condition at the edge nosing at the topplatform and at each stair tread." This expert evidence submitted by plaintiffs raised a triableissue of fact as to whether the tread of the stairs complied with the pertinent regulations of thebuilding code. Moreover, the injured plaintiff's testimony that she slipped on the top step of thesubject stairway, coupled with her expert's testimony of the slippery condition of such steps dueto worn-off treads, provided sufficient circumstantial evidence to raise an issue of fact as towhether her fall was caused by the allegedly defective condition (see Garcia v New YorkCity Tr. Auth., 269 AD2d 142 [2000]; Gramm v State of New York, 28 AD2d 787[1967], affd 21 NY2d 1025 [1968]). Concur—Mazzarelli, J.P., Acosta andRenwick, JJ.
Freedman, J., dissents in a memorandum as follows: I concur with the majority that theowner is entitled to summary judgment as an out-of-possession landlord. But in my view,summary judgment is also warranted for defendants because plaintiffs fail to make a prima facieshowing that the condition of the stairs caused Diane Babich to fall on them. Accordingly, Iwould affirm the motion court's order dismissing the complaint.
In support of their motions for summary judgment, defendants submitted affidavits from twoprofessional licensed engineers who had inspected the stairway and had measured both the steps'coefficient of friction (their slipperiness) and the illumination in the stairway (expressed infootcandles). The engineers found that the stairway's construction and maintenance fullycomplied with the New York City Building Construction Code, including its requirements aboutstep geometry, handrails, surfacing with non-slip materials, and lighting.
Defendants also submitted Babich's deposition testimony, in which she stated that theaccident occurred when she fell from the landing at the top of the stairs. When asked whatcaused her fall, she stated, "My foot slipped, that's all I can tell you." She indicated that she lostconsciousness and did not remember anything further until she later awoke in the hospital. Shealso stated that she did not know which foot had slipped.
In opposition to defendants' motions, plaintiffs submitted the expert affidavit of an architectwho had visually inspected the staircase after the accident but had not performed any [*3]tests on it.[FN*]
Plaintiffs also submitted an affidavit from Babich, prepared in response to the summaryjudgment motions, stating that her testimony was "consistent" with the architect's theory as towhat caused her fall.
While plaintiffs have raised an issue about the worn finish on the nosing of the landing,Babich's testimony fails to show that the worn finish caused her fall. Causation is critical toestablishing a prima facie case (Telfeyan v City of New York, 40 AD3d 372 [2007] [a negligenceclaim must be established by the injured plaintiff's testimony about what caused the accident]; see also Wilson v New York City Tr.Auth., 66 AD3d 602 [2009]). Babich has no idea what made her slip on the landing, andno evidence connects Babich's fall with the alleged worn condition (see Batista v New York City Tr. Auth.,66 AD3d 433 [2009]; Daniarov vNew York City Tr. Auth., 62 AD3d 480 [2009]; McNally v Sabban, 32 AD3d 340 [2006]).
I disagree with the majority's finding that plaintiffs' expert's affidavit, coupled with Babich'stestimony that she "slipped," constituted sufficient circumstantial evidence to raise the issue ofwhether the alleged defect caused the accident. Under the circumstances here, it is equally if notmore likely that Babich fell for completely unrelated reasons.
To find for plaintiffs, a factfinder would have to speculate about what caused Babich to slipon the stairs. Accordingly, summary judgment was properly granted to defendants.
The decision and order of this Court entered herein on March 11, 2010 (71 AD3d 479[2010]) is hereby recalled and vacated (see 2010 NY Slip Op 76240[U] [2010] [decidedsimultaneously herewith]). Cross motion for the imposition of sanctions is denied (see2010 NY Slip Op 76240[U] [2010] [also decided simultaneously herewith]).
Footnote *: All three experts examined thestaircase in June 2007, some 17 months after the accident.