| Page v State of New York |
| 2010 NY Slip Op 03520 [72 AD3d 1456] |
| April 29, 2010 |
| Appellate Division, Third Department |
| Barbara A. Page, Appellant, v State of New York et al.,Respondents. |
—[*1] Sliwa & Lane, Buffalo (Russell J. Fenton Jr. of counsel), for respondents.
Rose, J. Appeal from an order of the Court of Claims (Siegel, J.), entered June 16, 2009,which granted defendants' motion for summary judgment dismissing the claim.
Claimant commenced this negligence action to recover for injuries sustained when she fellwhile exiting a building owned by defendant State University of New York at Potsdam(hereinafter SUNY) where she was employed as the manager of a commissary operated byPotsdam Auxiliary and College Educational Services, Inc. (hereinafter PACES). As documentedby a security video recording, claimant exited the building onto a loading dock, crossed the dockat an angle to her right and, as she stepped onto the left side of a 30-inch-by-10-foot portableramp leading to the pavement below, her left foot caught on a three-inch curb on the side of theramp. With her hands full, she lost her balance, stumbled down the ramp and fell at its bottom.The ramp, which had been in use for approximately 10 years, was intended to cover theunderlying stairs when used for deliveries or raised and secured on its side by attachment to ahook installed in the wall of the building. Following discovery, defendants moved for summaryjudgment dismissing the claim. The Court of Claims granted the motion after finding theevidence sufficient to establish that PACES, rather than SUNY, owned and controlled the ramp,the danger posed by the ramp's curb was open and obvious, no building code was applicable tothe ramp, and claimant's fall was the consequence of her own failure to lift the ramp out of theway and use the stairs. Claimant now appeals.[*2]
We agree with claimant that the Court of Claims erred indeciding that SUNY was an out-of-possession landlord which cannot be held liable for thedanger posed by PACES's ramp. Although an out-of-possession landlord generally will not beheld responsible for dangerous conditions on leased premises after possession is transferred to atenant (see e.g. Davison v Wiggand, 259 AD2d 799, 800-801 [1999], lv denied94 NY2d 751 [1999]), the agreement between SUNY and PACES does not establish such atransfer here. The agreement is not termed a lease, it requires PACES to provide food services atvarious buildings on SUNY's campus and, as for the premises, it only required SUNY to makecertain facilities "available" to PACES. The agreement identified those facilities, but did not givePACES sole possession of them. In addition, the agreement expressly required SUNY to keepthe specified premises in good repair. As a result, the essential element of a transfer of sole andexclusive dominion and control over the designated spaces in SUNY's buildings is lacking here(see Karp v Federated Dept. Stores, 301 AD2d 574, 575 [2003]; Linro Equip. Corp. vWestage Tower Assoc., 233 AD2d 824, 826 [1996]).
We also find merit in claimant's argument that defendants can be held liable for her injurieseven though the tripping hazard posed by the ramp's curb was open and obvious. Although thecurb was painted yellow and plainly visible, and defendants had no duty to warn of its presence,they failed to establish prima facie that the ramp's protruding curb did not constitute a dangerouscondition (see Bilinski v Bank ofRichmondville, 12 AD3d 911, 911-912 [2004]). Because the ramp did not lie in astraight line from the building's exit, the record could support a finding that a tripping hazard layin the path of anyone who walked directly from the exit to the ramp. Thus, the question ofwhether SUNY kept its premises in a reasonably safe condition is for the trier of fact and cannotbe resolved as a matter of law (see MacDonald v City of Schenectady, 308 AD2d 125,127-128 [2003]; Soich v Farone, 307 AD2d 658, 660 [2003]).
Nor do we agree with defendants that the regulations governing means of egress provided inthe New York State Uniform Fire Prevention and Building Code (hereinafter the Code) areinapplicable merely because SUNY's building was constructed before the Code went into effect.We read the former regulations cited by the parties as requiring maintenance of exits andprohibiting the installation of portable or temporary obstructions to egress rather than merelyproviding construction standards (see 9 NYCRR former 1162.2 [a], [f]). In addition,alterations to existing buildings, including the change of a means of egress, were required tocomply with the Code (see 9 NYCRR former 1231.3 [a]). Given the length of time thatthe ramp had been in use, the placement of the hook in the adjacent wall and that the curb at thetop of the ramp appears to protrude some 12 inches onto the loading dock and to lie in the pathbetween the exit and the ramp, there is a material question of fact as to whether it constituted acode violation (see Anderson v CrestonAssoc., LLC, 59 AD3d 298, 299 [2009]; Slomin v Skaarland Constr. Corp., 207AD2d 639, 641 [1994]).
It also was error for the Court of Claims to relieve defendants of liability based upon thedisputed evidence that it had been claimant's responsibility to raise the ramp and hook it to thebuilding, making her failure to do so before descending to the lower level the sole proximatecause of her fall. Claimant not only denied that she had been so instructed, but averred that theramp was necessarily left down because deliveries were coming and going "all the time." Unlikethe Court of Claims, we do not view this to be a case where the injuries resulted from the mannerin which claimant used the ramp. Rather, the question here is whether the ramp itself posed adanger to those using it (compare Prairie v Sacandaga Bible Conference Camp, 252AD2d 940, 941 [1998], lv denied 92 NY2d 816 [1998]). Under these circumstances, itcannot be said that, [*3]as a matter of law, claimant's failure toremove the ramp was willful and the sole proximate cause of her fall rather than comparativenegligence (see Nash v Fitzgerald,14 AD3d 850, 852 [2005]; Mesick v State of New York, 118 AD2d 214, 218[1986], lv denied 68 NY2d 611 [1986]). Since comparative negligence is to bedetermined by the trier of fact (see Paternoster v Drehmer, 260 AD2d 867, 869 [1999]),summary judgment should not have been granted on that basis.
Finally, we cannot agree with defendants' contention that there is insufficient evidence toestablish that they had notice of the dangerous condition created by the ramp. While there is noevidence that defendants had actual knowledge of the tripping hazard posed by the ramp's curb,they were also required to establish that the protruding curb of the ramp was not " 'visible andapparent and it [did not] exist for a sufficient length of time prior to the accident to permitdefendant[s'] employees to discover and remedy it' " (Salerno v North Colonie Cent. School Dist., 52 AD3d 1145, 1147[2008], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837[1986]). Inasmuch as it is undisputed that the ramp had been used for a number of years beforeclaimant fell and its curb was readily visible, defendants failed to demonstrate that, as a matter oflaw, they did not have constructive notice of the alleged dangerous condition (see Ennis-Short v Ostapeck, 68 AD3d1399, 1400 [2009]).
Accordingly, the Court of Claims should not have granted defendants' motion for summaryjudgment.
Mercure, J.P., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, with costs, and motion denied.