| Carter v State of New York |
| 2014 NY Slip Op 05394 [119 AD3d 1198] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Demaris Carter, Respondent, v State of New York,Appellant. |
Law Offices of Edward M. Eustace, White Plains (Christopher M. Yapchanyk ofcounsel), for appellant.
Buckley, Mendleson, Criscione & Quinn, PC, Albany (John J. Criscione ofcounsel), for respondent.
Lynch, J. Appeal from an order of the Court of Claims (Hard, J.), entered July 9,2013, which denied defendant's motion for summary judgment dismissing the claim.
Claimant contends that, on the afternoon of June 20, 2008, she was injured when shefell while descending the exterior stairs leading to the basement of the Hall of Springs(hereinafter the Hall) on her way to punch in at the office of her employer, Aramark.Defendant owns the Hall, a building constructed between 1932 and 1933, which islocated in the Saratoga State Park in the City of Saratoga Springs, Saratoga County andis on the Federal Register of Historic Places. Defendant licenses the Hall to the SaratogaPerforming Arts Center, a not-for-profit corporation that operates the Hall and subleasesspace to others, including vendors such as Aramark. Claimant alleged that she slippedand fell as she was taking a step down from the top step, which was still wet from rainearlier in the day; she reached for a handrail to grab and stop her fall, but the handrailwas not within reach, and she fell down five or six steps. It is undisputed that thehandrail situated on the right side of the staircase did not begin until the third step down.Claimant filed this negligence claim alleging, among other deficiencies, that defendantfailed to provide the basement stairs with an adequate handrail. After issue was joinedand discovery completed, defendant moved for summary judgment dismissing the claim,arguing that it did not negligently maintain the stairs or create a defective condition andlacked notice thereof, and that it was exempt from or in compliance with any applicablebuilding codes. The Court of Claims denied the motion, prompting defendant'sappeal.
[*2] Defendant has the same duty andis subject to the same rules of liability as other landowners (see Preston v State ofNew York, 59 NY2d 997, 998 [1983]; Covington v State of New York, 54 AD3d 1137,1137-1138 [2008]). As such, "[t]o prevail on [its] motion, defendant was required toshow that [it] maintained the premises in a reasonably safe condition and neither creatednor had actual or constructive notice of any allegedly dangerous condition" (Ennis-Short v Ostapeck, 68AD3d 1399, 1400 [2009]; see Tate v Golub Props., Inc., 103 AD3d 1080, 1081[2013]). Viewing the evidence most favorably to claimant, we agree that defendant didnot make the requisite prima facie showing and that triable issues of fact exist and,therefore, we find that the Court of Claims correctly denied the motion (compare Branham v LoewsOrpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]; Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
Contrary to its contentions, defendant did not establish as a matter of law that itmaintained the staircase in a reasonably safe condition. While there was no proof thatdefendant had actual notice of prior falls on or complaints regarding these stairs,"constructive notice may be established by showing that the condition was apparent,visible and existed for a sufficient time prior to the accident so as to allow [the]defendant to discover and remedy the problem" (Ennis-Short v Ostapeck, 68AD3d at 1400). Considering the testimony proffered by defendant indicating that thehandrail existed in this condition for an extensive period of time and that the premiseswere regularly inspected for safety purposes, factual questions exist as to whetherdefendant was on notice of the allegedly dangerous condition presented by a handrail thatdid not extend to the top of the stairs (see Dufrain v Hutchings, 112 AD3d 1212, 1212-1213[2013]; Wilson v Proctors Theater & Arts Ctr. & Theater ofSchenectady, 223 AD2d 826, 828 [1996]; see also Pomeroy v Gelber, 117 AD3d 1161, 1164 [2014];Grayson v Hall, 31 AD3d606, 607 [2006]).
Although defendant concedes that, under the current State BuildingCode—initially adopted in 1984 (see Vachon v State of New York, 286AD2d 528, 531 [2001])—handrails must extend to the top of a staircase, itcontends that it is exempt from this requirement as a preexisting use since the handrail isan original feature of the Hall. In this regard, defendant put forth testimony that thelimited records available to it regarding the Hall[FN1]did not indicate that the stairs orhandrail had been replaced or substantially modified in recent decades and that itsemployees had no recollection that such plans had been considered or approved. Theproffered testimony, however, was inconsistent as to whether the handrail was an"original element" of the Hall.[FN2]Moreover, defendant's own submissionsdemonstrate that the handrail brackets had been [*3]replaced at some unknown time, with photographsdocumenting anchor holes in the wall adjacent to the current brackets. This proof was notsufficient to establish that the handrail was original to the Hall, i.e., that it had never beenreplaced or modified.
Even accepting, arguendo, defendant's argument that a state building code did notexist at the time that the Hall was constructed, defendant still failed to establish that thedesign of the handrail was safe and comported with accepted standards of construction atthe time the Hall was built or thereafter (see Lesocovich v 180 Madison Ave.Corp., 81 NY2d 982, 985 [1993]; Cook v Indian Brook Vil., Inc., 100 AD3d 1247, 1248[2012]; McKee v State of NewYork, 75 AD3d 893, 894 [2010]; compare Timmins v Benjamin, 77 AD3d 1254, 1254[2010]; Ennis-Short v Ostapeck, 68 AD3d at 1400; Reid v Schalmont School Dist.,50 AD3d 1323, 1324-1325 [2008]).[FN3]Moreover, defendant's claim thatbuilding code standards governing handrails do not apply is not dispositive of claimant'scommon-law negligence claim (see Kellman v 45 Tiemann Assoc., 87 NY2d871, 872 [1995]; Patafio v Porta-Clean of Am., 39 NY2d 813, 815-816 [1976];Cook v Indian Brook Vil., Inc., 100 AD3d at 1248; Timmins v Benjamin,77 AD3d at 1255 n 1; Wilson v Proctors Theater & Arts Ctr. & Theater ofSchenectady, 223 AD2d at 828-829). The fact that the handrail only starts at the thirdstep down the staircase presents a question for a factfinder to resolve as to whether thisplacement created a dangerous condition (see generally Wilson v Proctors Theater& Arts Ctr. & Theater of Schenectady, 223 AD2d at828-829).
[*4] Further, defendant did not meetits prima facie burden of demonstrating that the lack of a handrail extending to the top ofthe stairs did not cause or contribute to claimant's fall (see Finnigan v Lasher, 90AD3d 1286, 1288 [2011]). "Even if [claimant's] fall was precipitated by a misstep,given her testimony that she reached out to try to stop her fall, there is an issue of fact asto whether the absence of a handrail [at the top of the stairs] was a proximate cause ofher injury" (Antonia vSrour, 69 AD3d 666, 666-667 [2010]; see Russo v Frankels Garden City Realty Co., 93 AD3d708, 710 [2012]; Yefet vShalmoni, 81 AD3d 637, 637-638 [2011]; Boudreau-Grillo v Ramirez, 74 AD3d 1265, 1267 [2010];Wajdzik v YMCA of GreaterN.Y., 65 AD3d 586, 587 [2009]; Palmer v 165 E. 72nd Apt. Corp., 32 AD3d 382, 382[2006]). Likewise, the fact that claimant had used the stairs in the past and may havebeen aware of the defective condition did not defeat her claim but, rather, this "may beconsidered by a jury in assessing comparative negligence" (Finnigan v Lasher, 90AD3d at 1287; see Timmins v Benjamin, 77 AD3d at 1255). Defendant'switnesses also conceded that the stairs and handrail were not historically significant andthat the handrail could have been modified to extend to the top of the stairs consistentwith historic preservation standards. Given the foregoing, questions of fact are presentedregarding defendant's liability for claimant's injuries. Accordingly, defendant's motion forsummary judgment dismissing the claim was properly denied.
Lahtinen, J.P., McCarthy, Rose and Devine, JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote 1:Significantly, onlyrelatively recent, incomplete historical records were available to and researched bydefendant's witnesses regarding renovations or modifications to the Hall, and thememories of its witnesses were limited in that regard. Records for the Office of Parks,Recreation and Historic Preservation, which has jurisdiction over capital improvementsand renovations to the Hall that are not basic maintenance, date back to 1970, when theagency was established, and its records prior thereto are incomplete.
Footnote 2:There was conflictingtestimony as to whether the handrail itself was original, none of which was based uponconclusive evidence. Julian Adams, the Senior Historic Restoration Sites Coordinator forthe Office of Parks, Recreation and Historic Preservation, testified that the railingmaterial "does not appear [to be] original" and that he did not know when—or bywhom—it might have been replaced, acknowledging that it could have beenreplaced as maintenance and repair, without historic approval. Kurt Kress, the CapitalFacilities Regional Manager for said office, who oversees capital improvements but notday-to-day maintenance, opined that the handrail was original. He based this opinionupon the lack of records documenting that a new handrail had been installed, andbecause it looked "similar to the railing shown on the original construction drawings"and looked like it could be that age. The concessions of Adams and speculativetestimony of Kress did not sustain defendant's burden of proof.
Footnote 3:Kress acknowledged thathe was not aware of what any building code required in 1932, or what the requirementswere, historically, for handrails. Although this Court need not examine claimant's proofgiven defendant's failure, as the movant, to make a prima facie showing (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Cook v Indian BrookVil., Inc., 100 AD3d at 1248), we note that, in opposition to the motion, claimantsubmitted an expert affidavit of a licensed architect asserting that the handrail did notcomply with any of the building codes in existence since its construction, and otherwise"did not meet architectural standards" and was "dangerous."