Summary
In Hyman, the plaintiffs bore the burden of establishing that the proffered building code provisions were in effect at the relevant time and that updated compliance was required because the plaintiffs had raised the building codes in opposition to the defendant's summary judgment proof, which had shown there was no defective or dangerous condition on the premises (see id. at 744–745, 787 N.Y.S.2d 215, 820 N.E.2d 859).
Summary of this case from Powers v. 31 E 31 LLCOpinion
130.
Decided November 18, 2004.
Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered August 18, 2003. The Appellate Division order, insofar as appealed from, with two Justices dissenting, affirmed an order of the Supreme Court, Queens County (Allan B. Weiss, J.), which had granted defendant's motion for summary judgment dismissing the complaint.
Hyman v. Queens County Bancorp, 307 AD2d 984, affirmed.
David P. Kownacki, P.C., New York City ( David P. Kownacki and Brad H. Rosken of counsel), for appellants.
Perez, Furey Varvaro, Uniondale ( James F. Furey of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
In this personal injury action, plaintiffs, responding to defendant's motion for summary judgment, alleged that defendant's premises violated city and state building code requirements regarding stairway handrails, relying on those alleged violations as evidence of a dangerous or defective condition on the premises. Plaintiffs claimed that the absence of a handrail on both sides of the stairway — the purported violation — was a proximate cause of plaintiff Alan Hyman's fall down six or seven stairs.
A party opposing a motion for summary judgment must produce admissible evidence sufficient to require a trial on material questions of fact upon which the claim rests. Although plaintiffs argued that the absence of a second handrail violated city and state laws, not all buildings were subject to the cited codes and plaintiffs offered no evidence of what would have brought the subject building within the purview of those laws. Plaintiffs have thus failed to raise a triable issue of fact regarding the defective or dangerous condition of the premises, particularly in light of the certificate of occupancy issued to defendant in 1978 ( see, by contrast, Lesocovich v. 180 Madison Ave. Corp., 81 NY2d 982). We also agree with the Appellate Division that plaintiffs failed to raise a triable issue with regard to causation, offering only speculation that in the circumstances presented the existing handrail was beyond reach.
Order affirmed, with costs, in a memorandum.