| Taylor v Lands End Realty Corp. |
| 2012 NY Slip Op 02150 [93 AD3d 1062] |
| March 22, 2012 |
| Appellate Division, Third Department |
| Michael Taylor, Respondent, v Lands End Realty Corporation,Appellant, et al., Defendant. |
—[*1] Thorn, Gershon, Tymann & Bonanni, L.L.P., Lake Placid (Erin Mead of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Demarest, J.), entered December 1,2010 in Franklin County, which, among other things, partially denied a motion by defendantLands End Realty Corporation for summary judgment dismissing the complaint against it.
Plaintiff was injured when he allegedly fell from the third story of a building owned bydefendant Lands End Realty Corporation, a limited liability company of which Bruce Shapiero isa principal. Shapiero lives in Long Island and is not actively involved in the management andoperation of the building; instead, he employs a property manager to, among other things, addressmaintenance issues, as needed. According to plaintiff, one night, while visiting friends whoresided in an apartment on the third floor of the building, he exited from an exterior door locatedin one of the bedrooms onto the unlit landing and attempted to sit at the top of the stairs to smokea cigarette. In the darkness, plaintiff failed to notice that the stairs had been removed bydefendant Ragip Purisic, who had been hired by Lands End and/or its property manager to makecertain repairs. In fact, Purisic had temporarily removed the stairs without erecting any barricadeor posting warnings. As a result, when plaintiff went to step down on the first stair tread, he fellto the ground below.[*2]
Plaintiff commenced this personal injury action againstLands End and Purisic. Lands End moved for summary judgment dismissing the complaintagainst it on the theory that, inasmuch as Purisic was an independent contractor, Lands End couldnot be held vicariously liable for Purisic's actions. Supreme Court agreed that Lands End was notliable for Purisic's actions because he was an independent contractor and found that thenondelegable duty exception to that rule did not apply. Nonetheless, Supreme Court partiallydenied Lands End's motion, finding that a question of fact remained as to whether the failure toprovide exterior lighting could have been a proximate cause of the accident. Lands End nowappeals.
As argued by the parties on appeal, the issue before us distills to whether Lands End had anindependent duty to provide lighting on the exterior rear staircase of the building, regardless ofany claimed defect to the stairs.[FN*] Because Lands End, as the movant for summary judgment, failed to meet its burden ofestablishing, as a matter of law, that it had no such duty, we affirm Supreme Court's orderpartially denying its motion.
We begin with the well-settled principle that a landowner has a duty to maintain his or herproperty in a reasonably safe condition, which includes providing a safe means of ingress andegress to tenants (see Peralta v Henriquez, 100 NY2d 139, 144 [2003]; Basso vMiller, 40 NY2d 233, 241 [1976]; Gallagher v St. Raymond's R. C. Church, 21NY2d 554, 557 [1968]). The scope of such duty is determined " 'in view of all the circumstances,including the likelihood of injury to others, the seriousness of the injury, and the burden ofavoiding the risk' " (Basso v Miller, 40 NY2d at 241, quoting Smith v Arbaugh'sRest., Inc., 469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 [1973];accord Peralta v Henriquez, 100 NY2d at 144). Whether a landowner has a duty and theextent thereof is for the court to determine (see 532 Madison Ave. Gourmet Foods vFinlandia Ctr., 96 NY2d 280, 288 [2001]). The Court of Appeals has held that "[a]bsent ahazardous condition or other circumstance giving rise to an obligation to provide exteriorlighting for a particular area, landowners are generally not required 'to illuminate their propertyduring all hours of darkness' " (Miller vConsolidated Rail Corp., 9 NY3d 973, 974 [2007], quoting Peralta v Henriquez,100 NY2d at 145) and has, thus, declined to impose a "generalized one-size-fits-all [commonlaw] duty" to provide illumination to the exterior of a building (Peralta v Henriquez, 100NY2d at 145). However, the Court of Appeals has held that a landowner with knowledge of acondition easily alleviated by illumination may, under some circumstances, have a duty toprovide lighting (see Peralta v Henriquez, 100 NY2d at 145). We must, therefore,examine the particular circumstances of each case to determine whether such a duty exists,considering, among other things, "[t]he use to which [the] property is put, and the frequency ofthat use by others" (id. at 144).[*3]
The record before us establishes that the subject stairwaywas a secondary means of ingress and egress to four apartments, and plaintiff testified that he hadused the stairway in the past without incident, despite the lack of lighting. However, Lands Endprovided scant evidence regarding the frequency of use of the stairway by others or as to theareas of direct access therefrom. In the procedural context of this case, Lands End, as the movant,had the obligation to provide such information and to resolve all factual issues to prevail on itsmotion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557, 562[1980]). The lack of such critical information renders us unable to determine whether Lands Endhad an independent duty to provide illumination to the rear exterior of its building, including thearea of the missing stairway. Only if such duty is established is there a question as to whether thebreach thereof was a proximate cause of plaintiff's injuries. Accordingly, we conclude thatSupreme Court's partial denial of Lands End's motion was proper, albeit for different reasons.
Rose, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: No evidence was presented toestablish that Lands End had either actual or constructive notice that the stairs had been removed.We also note that, while Supreme Court did not directly address plaintiff's argument that LandsEnd had an independent duty to warn of the dangerous condition, implicit in the court's findingthat Lands End lacked actual or constructive notice of such a condition—a finding thatplaintiff did not appeal—is a determination that Lands End had no duty to warn and,therefore, was not negligent for failing to do so.