| Savage v Desantis |
| 2008 NY Slip Op 09146 [56 AD3d 1013] |
| November 20, 2008 |
| Appellate Division, Third Department |
| Ralph L. Savage et al., Respondents, v Vincent Desantis,Appellant. |
—[*1] Waite & Associates, P.C., Albany (Stephen J. Waite of counsel), for respondents.
Spain, J. Appeal from an order of the Supreme Court (Giardino, J.), entered January 2, 2008in Fulton County, which, among other things, denied defendant's motion for summary judgmentdismissing the complaint.
In this personal injury action, plaintiff Ralph L. Savage (hereinafter plaintiff) sustainedinjuries when he fell while walking down an interior stairwell located in the common area of athree-unit apartment building owned by defendant. Plaintiff and his wife, derivatively, allege thathis injuries were caused by defendant's breach of a duty owed to plaintiff to maintain the buildingin a reasonably safe condition, specifically, defendant's failure to provide proper stairwelllighting. After joinder of issue, defendant moved for summary judgment dismissing thecomplaint. Plaintiffs opposed the motion and cross-moved for partial summary judgment as toliability. Supreme Court denied both motions finding that defendant had a duty to maintain hisproperty in a reasonably safe condition, which included making some provision for theillumination of the stairwell, but that a question of fact remained as to whether defendant hadfulfilled his duty. On defendant's appeal, we now modify by reversing the denial of defendant'smotion.
To prevail on summary judgment, defendant must establish that plaintiffs failed to make outa prima facie case (see CPLR 3212 [b]; Zuckerman v City of New York, 49NY2d 557, 562 [1980]; Barksdale v Henry, 228 AD2d 947, 948 [1996]). To make out aprima facie case of property owner negligence, plaintiffs must show that defendant owner owed aduty to plaintiff, [*2]defendant breached such duty, and plaintiff'sinjuries resulted from defendant's breach (see Barksdale v Henry, 228 AD2d at 948).
It is well settled that an owner has a duty to maintain his or her property in a reasonably safecondition (see Peralta v Henriquez, 100 NY2d 139, 144 [2003]; Miller v Consolidated Rail Corp., 41AD3d 948, 950 [2007], affd 9 NY3d 973 [2007]). This duty has been held to requirean owner to provide and maintain lighting in common interior stairwells (see Viera v Riverbay Corp., 44 AD3d577, 579 [2007]; Tarrazi v 2025 Richmond Ave. Assoc., 296 AD2d 542, 544[2002]).
On this record, we conclude that defendant met his initial burden by demonstrating that thefacts, as alleged by plaintiff, are insufficient to establish that defendant breached his duty ofreasonable care owed to plaintiff. It is undisputed that on the evening of November 22, 2005,plaintiff, while working as a pizza delivery person, delivered a pizza to a second floor tenant inthis apartment building. Defendant and his wife reside on the first floor of the building, and thesecond floor is divided into two residential units. Upon entering, plaintiff proceeded up theinterior common stairwell which, at that time, was illuminated by light emanating from thetenant's open apartment door. Although there are windows in the double glass doors of theentrance to the building and a large window on a stairwell landing, the pizza delivery occurredafter dark. After completing the transaction, plaintiff turned and made his way down the stairs.As plaintiff reached the lower landing of the stairwell, the tenant closed his apartment door,extinguishing all light in the stairwell. In the resulting darkness, plaintiff failed to properlynavigate the remaining length of the landing and the two steps that followed, causing him to falland sustain injuries.
It is uncontroverted that defendant provided working light fixtures in the stairwell.Specifically, on the first floor, there is a ceiling chandelier equipped with five light bulbs and, onthe second floor, there is a wall sconce. Within the stairwell, there are light switches at the topand bottom of the stairs.[FN1]Defendant testified that he left the responsibility for turning the stairwell lights on and off to thetenants, who resided in separate apartments on the second floor, on an as-needed basis.
We are unpersuaded by plaintiffs' contention that the provision here of working light fixturesin the stairwell that could be used on an as-needed basis—rather than the provision ofcontinuous stairwell lighting during all hours of darkness—constituted a breach ofdefendant's duty of reasonable care. No evidence exists in this record that defendant everreceived any complaints regarding the stairwell lighting; in fact, since defendant's purchase of theproperty in 2003, the City of Gloversville has conducted annual inspections of the building andissued certificates of occupancy thereafter. Nor was evidence submitted that defendant hadknowledge of any prior accidents resulting from the stairwell lighting.
Under these facts, to extend the common-law duty of the property owner above and beyondproviding access to working light fixtures in the stairwell—by imposing a requirement thatowners provide continuous stairwell lighting during all hours of darkness—would place anew and an undue burden on owners. Such an expanded duty rule would exceed the prevailing[*3]general requirement that property owners maintain theirbuildings in a reasonably safe condition. Indeed, the Court of Appeals has refused to impose a"generalized one-size-fits-all" duty of care requiring owners to light their property during allhours of darkness, in recognition of the fact that the financial and environmental burdens of sucha duty would outweigh any social benefit; the Court also reasoned that "finding [that] a failure toilluminate alone create[s] a dangerous condition would produce an indeterminate class ofplaintiffs without any reasonable limitations on liability" (Peralta v Henriquez, 100 NY2dat 145). Furthermore, when determining whether a property owner has breached his or her dutyof reasonable care, "courts must be mindful of the future effects their ruling will have and mustlimit the legal consequences of wrongs to a controllable degree" (id. at 144-145 [internalquotation marks and citation omitted]).
Finally, plaintiffs argue in their brief for the first time in this litigation that this Court shouldfind that defendant violated Multiple Residence Law § 109 by failing to provide adequatelighting in public areas. The failure to raise this issue before Supreme Court, however, precludesappellate review (see Bender v PeerlessIns. Co., 36 AD3d 1120, 1121 [2007]; Soich v Farone, 307 AD2d 658, 660[2003]).[FN2]
Therefore, as a matter of law, we find that defendant fulfilled his duty owed to plaintiff(see Miller v Consolidated Rail Corp., 41 AD3d at 952; Christoforou v Lown,120 AD2d 387, 391 [1986]). As such, defendant's motion should have been granted.
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified, onthe law, with costs to defendant, by reversing so much thereof as denied defendant's motion; saidmotion granted, summary judgment awarded to defendant and complaint dismissed; and, as somodified, affirmed.
Footnote 1: Notably, plaintiff concedes inhis deposition that he never looked for a light switch when he entered the building.
Footnote 2: Even assuming that this issuewere properly before this Court, plaintiffs did not demonstrate the applicability of this provision.Multiple Residence Law § 100 states that "[a]ll the provisions of this article shall apply toevery multiple dwelling of permanent or transient occupancy erected on or after July first,nineteen hundred fifty-two." Accordingly, while Municipal Residence Law § 109 requiresa property owner to provide continuous lighting in public areas, including an interior stairwell inthe common area of a multiunit residential apartment building (see Reider v WhitebrookRealty Corp., 23 AD2d 691, 691 [1965]), no evidence in the record indicates that this statuteis applicable to defendant's Victorian-style building.