| Powers v 31 E 31 LLC |
| 2013 NY Slip Op 02846 [105 AD3d 657] |
| April 25, 2013 |
| Appellate Division, First Department |
| Joseph W. Powers, Respondent, v 31 E 31 LLC et al.,Appellants. |
—[*1] Weitz & Luxenberg, P.C., New York (Alani Golanski of counsel), forrespondent.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered December 24,2012, which denied defendants' motion for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, and the motion granted. The Clerk isdirected to enter judgment accordingly.
Plaintiff Joseph Powers was injured when, while intoxicated, he fell off a setbackroof of a building owned and managed by defendants. The setback roof, which ran thelength of the rear of the building, was five-feet wide, and accessible by climbing throughthe window of plaintiff's friend's apartment. Although most of the setback abutted eithera wall or a setback roof from the adjacent building, a portion abutted an air shaft thatterminated below ground level. The setback had gutters, but no parapet walls orguardrails.
An accident is unforeseeable as a matter of law where the conduct or chain of eventswas so extraordinary that the defendant's duty did not extend to preventing it (see DiPonzio v Riordan, 89 NY2d 578, 583-584 [1997]). Here, given the nature andlocation of the setback, it was unforeseeable that individuals would choose to access it,and thus defendant had no duty to guard against such an occurrence (compareLesocovich v 180 Madison Ave. Corp., 81 NY2d 982 [1993] [rooftop that was largeenough to host a cookout, and contained its own porch]). Indeed, defendants'superintendent testified that he had never been on the setback, nor had he ever observedanyone using it.
Regarding allegations of statutory violations, defendants demonstrated that thebuilding, constructed as a loft in 1909 and converted to multiple dwelling in 1979, wasgrandfathered out of the 1968 and 2008 Building Codes by submission of the 1979Certificate of Occupancy (seeHyman v Queens County Bancorp, Inc., 3 NY3d 743 [2004]; compareLesocovich at 985). Plaintiff failed to adduce any evidence in opposition, such as theconversion costing more than 60% of the value of the property (seeAdministrative Code of City of NY § 27-115), that would create a question offact concerning the applicability of the 1968 Building Code, namely AdministrativeCode § 27-334. Plaintiff also failed to raise a question of fact as to defendants'reliance on Administrative Code § 27-120.
Furthermore, the Certificate of Occupancy satisfied defendants' burden of showingthat [*2]the Multiple Dwelling Law was not violated,since the 1979 certificate provided that the building "conform[ed] substantially. . . to the requirements of all applicable laws, rules and regulations for theuses and occupancies specified herein." Plaintiff's argument, that the use and occupancyof the building was somehow changed by an alleged bar on smoking is unsupported.Concur—Andrias, J.P., Saxe, DeGrasse, Richter and Gische, JJ.
Motion to stay trial pending appeal denied as academic. [Prior Case History:2012 NY Slip Op 33064(U).]