| Finnigan v Lasher |
| 2011 NY Slip Op 09066 [90 AD3d 1286] |
| December 15, 2011 |
| Appellate Division, Third Department |
| William Finnigan, Respondent, v Wayne Lasher, Doing Business asValley View Construction, Appellant, et al., Defendant. |
—[*1] Basch & Keegan, Kingston (Derek J. Spada of counsel), for respondent.
Spain, J. Appeal from an order of the Supreme Court (Work, J.), entered January 27, 2011 inUlster County, which, among other things, denied defendant Wayne Lasher's motion forsummary judgment dismissing the complaint against him.
Plaintiff commenced this personal injury action to recover for injuries he sustained when,while installing rough wiring for the interior electrical system of defendant Jason Richers'partially constructed home, he fell down a basement staircase constructed by defendant WayneLasher, the contractor responsible for the general construction of the home. Richers was acting ashis own general contractor. Plaintiff asserted Labor Law violations against Richers andnegligence by both Richers and Lasher. Each defendant moved for summary judgment, andSupreme Court dismissed plaintiff's allegations of Labor Law violations against Richers, butotherwise denied the motions. Lasher now appeals from the denial of his motion for summaryjudgment.
We affirm. Lasher's sole contention in arguing that his motion for summary judgment [*2]was improperly denied is that the alleged building code violationsthat plaintiff relies upon—a differential in the tread width (front to back dimension) of thesteps and the lack of handrails on the stairway—could not have caused or contributed tothe accident. The determination of legal causation typically involves questions of foreseeablilitysubject to varying inferences, creating issues that "generally are for the fact finder to resolve"(Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; see Mazzio v Highland Homeowners Assn.& Condos, 63 AD3d 1015, 1016 [2009]). Here, it is conceded that the top two steps ofthe staircase—which Lasher constructed to aid in the carrying of materials to and from thebasement during construction—were nine inches wide while the tread width of theremaining steps was 10 inches. Further, at the time of the accident, the stairway had no handrails.
Lasher asserts that these deficiencies did not cause plaintiff to fall. He relies on plaintiff'sown description of the accident at deposition, where plaintiff stated that he started to descend thestaircase to the basement and overstepped much of the top step, catching only about two inchesof his heel on the tread before pivoting forward and falling down the stairs. Because plaintiffadmits that, as he testified, he did significantly overstep the top tread, Lasher argues that thedifference in tread width of the stairs did not cause or contribute to the accident. However,plaintiff explained that, had the tread been 10 inches wide like the other steps, he would have hadat least three inches under his foot and thus might not have lost his balance. Whether thisargument is plausible in light of all the other facts surrounding plaintiff's accident is a questionfor the jury that should not be resolved on summary judgment (see Feldman vDombrowsky, 288 AD2d 605, 606 [2001]; see also Timmins v Benjamin, 77 AD3d 1254, 1256 [2010];compare Speranza v Payea, 225 AD2d 987, 987 [1996], lv denied 88 NY2d 806[1996]). The fact that plaintiff had traversed the staircase on numerous occasions previous to hisfall does not defeat his claim; instead, plaintiff's previous knowledge of a defective condition, ifany, may be considered by a jury in assessing comparative negligence (see Timmins vBenjamin, 77 AD3d at 1255).
Likewise, we find that Lasher did not meet his burden of creating a prima facie case that thelack of handrails did not cause or contribute to plaintiff's fall. "[P]roximate cause may be inferredfrom the facts and circumstances surrounding the event" (Ellis v County of Albany, 205AD2d 1005, 1007 [1994]). No testimony was elicited as to whether plaintiff reached for a railing.Further, given that plaintiff knew in advance that the stairway lacked railings, viewing theevidence in the light most favorable to plaintiff, we cannot say, as a matter of law, that he wouldnot have utilized the railings and prevented his fall if they had existed (see Timmins vBenjamin, 77 AD3d at 1256; Mazzio v Highland Homeowners Assoc. & Condos, 63AD3d at 1016; DaBiere v Craig, 284 AD2d 885, 885-886 [2001]; June v ZikakisChevrolet, 199 AD2d 907, 909-910 [1993]; compare Avina v Verburg, 47 AD3d 1188, 1189-1190 [2008][absence of handrails not a proximate cause where the plaintiff was beyond the stairs when shefell]; Sauer v Mannino, 309 AD2d 1053, 1054 [2003] [argument that handrail wouldhave prevented fall pure speculation when the plaintiff's arms were full of scrap metal]).
Mercure, A.P.J., Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order isaffirmed, with costs.