Luis Carrion, Appellant,v.John Faulkner,, et al., Respondents.BriefN.Y.April 26, 2016To be Argued by: LISA L. GOKHULSINGH Bronx County Clerk’s Index No. 18070/06 New York Supreme Court Appellate Division—First Department LUIS CARRION, Plaintiff-Appellant, – against – JOHN FAULKNER, individually and doing business as Falcon Mews Associates and FALCON MEWS ASSOCIATES, Defendants-Respondents. BRIEF FOR DEFENDANTS-RESPONDENTS GANNON, ROSENFARB, BALLETTI & DROSSMAN Attorneys for Defendants-Respondents 100 William Street, 7th Floor New York, New York 10038 (212) 655-5000 lgokhulsingh@twrgrp.com PRINTED ON RECYCLED PAPER i TABLE OF CONTENTS Page Table of Authorities .................................................................................................................. ii Preliminary Statement ............................................................................................................... 1 Counterstatement of Question Presented ............................................................................. 2 Counterstatement of Facts and of the Case .......................................................................... 3 Argument .................................................................................................................................... 7 Faulkner was properly granted summary judgment ................................................. 7 A. The allegedly worn condition was not an actionable defect ....................... 8 B. Faulkner did not have actual notice of a dangerous condition ................. 10 C. Faulkner did not have constructive notice of a dangerous condition ........................................................................................................... 11 Conclusion ................................................................................................................................ 14 ii TABLE OF AUTHORITIES Page(s) Cases: Altschuler v. Gramatan Mgt., Inc., 27 A.D.3d 304 (1st Dep’t 2006) ................................................................................ 12 Arnold v. New York City Hous. Auth., 296 A.D.2d 355 (1st Dep’t 2002) ............................................................................... 7 Basso v. Miller, 40 N.Y.2d 233 (1976) ................................................................................................... 7 Berger v. Isk Manhattan, Inc., 10 A.D.3d 510 (1st Dep’t 2004) ....................................................................................... 11 Budano v. Gurdon, 110 A.D.3d 543 (1st Dep’t 2013) ............................................................................... 8 Caicedo v. Sanchez, 116 A.D.3d 553 (1st Dep’t 2014) ................................................................................ 8 Carlos v. New Rochelle Municipal Hous. Auth., 262 A.D.2d 515 (2d Dep’t 1999) .............................................................................. 10 Charley v. Goss, 12 N.Y.3d 750 (2009) ................................................................................................... 8 Cintron v. New York City Tr. Auth., 77 A.D.3d 410 (1st Dep’t 2010) ............................................................................. 8-9 DeRosa v. City of New York, 30 A.D.3d 323 (1st Dep’t 2006) ................................................................................ 12 Fishman v. Westminster House Owners, Inc., 24 A.D.3d 394 (1st Dep’t 2005) ................................................................................. 8 Frank v. Time Equities, 292 A.D.2d 186 (1st Dep’t 2002) ............................................................................... 7 Gaston v. New York City Hous. Auth., 258 A.D.2d 220 (1st Dep’t 1999) .............................................................................. 12 Gibbs v. 3220 Netherland Owners Corp., 99 A.D.3d 621 (1st Dep’t 2012) ................................................................................ 13 iii Gibbs v. Port Auth. of N.Y., 17 A.D.3d 252 (1st Dep’t 2005) ................................................................................. 11 Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836 (1986) ........................................................................................... 10, 11 Jenkins v. New York City Hous. Auth., 11 A.D.3d 358 (1st Dep’t 2004) .................................................................................. 9 Katz v. N.Y. Hosp., 170 A.D.2d 345 (1st Dep’t 1991) ............................................................................... 8 Martin v. DNA Rest. Corp., 103 A.D.3d 575 (1st Dep’t 2013) .............................................................................. 13 Matcovsky v. Days Hotel, 10 A.D.3d 557 (1st Dep’t 2004) ................................................................................ 11 Messina v. City of New York, 300 A.D.2d 121 (1st Dep’t 2002) ............................................................................... 12 Mitchell v. New York Univ., 12 A.D.3d 200 (1st Dep’t 2004) ................................................................................. 10 Moody v. F.W. Woolworth Co., 288 A.D.2d 446 (2d Dep’t 2001) ................................................................................ 7 Murphy v. Conner, 84 N.Y.2d 969 (1994) ................................................................................................... 8 Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980) ................................................................................................... 7 Pianforini v. Kelties Bum Steer, 258 A.D.2d 634 (2d Dep’t 1999) ............................................................................... 10 Pomahac v. TrizecHahn 1065 Ave. of the Ams., LLC, 65 A.D.3d 462 (1st Dep’t 2009) ................................................................................ 11 Putnam v. Stout, 38 N.Y.2d 607 (1976) ................................................................................................... 7 Rodriguez v. New York City Hous. Auth., 209 A.D.2d 260 (1st Dep’t 1994) .............................................................................. 12 Sarmiento v. C & E Assoc., 40 A.D.3d 524 (1st Dep’t 2007) ................................................................................. 9 iv Savio v. Rose Flower Chinese Restaurant, Inc., 103 A.D.3d 575 (1st Dep’t 2013) ............................................................................... 8 Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972 (1994) ........................................................................................... 10, 11 Sims v. 3349 Hull Avenue Realty Co. LLC, 106 A.D.3d 466 (1st Dep’t 2013) ............................................................................... 8 Solomon v. City of New York, 66 N.Y.2d 1026 (1985) .................................................................................................. 7 Strowman v. A&P, 252 A.D.2d 384 (1st Dep’t 1998) .............................................................................. 11 Trujillo v. Riverbay Corp., 153 A.D.2d 793 (1st Dep’t 1989) ..................................................................................... 11 Wyckoff v. Jujamcyn Theaters, Inc., 11 A.D.3d 319 (1st Dep’t 2004) ................................................................................ 12 Statutes & Other Authorities: Administrative Code of City of N.Y. § 27-127 .............................................................. 5, 13 Administrative Code of City of N.Y. § 27-128 .............................................................. 5, 13 Administrative Code of City of N.Y. § 27-232 ............................................................ 12, 13 Administrative Code of City of N.Y. § 27-375 ........................................................ 5, 12, 13 Administrative Code of City of N.Y. § 27-375(h) ................................................................ 5 Administrative Code of City of N.Y. § C26–292.0 ............................................................ 13 1 Preliminary Statement Plaintiff-appellant Luis Carrion fell down a staircase in defendants-respondents’ John Faulkner, individually and doing business as Falcon Mews Associates and Falcon Mews Associates (collectively “Faulkner”) residential building. Carrion brought suit against Faukner complaining that the tread on which he slipped, was worn and slippery. Carrion admitted that he observed no water on the step and that garbage, debris did not contribute to the accident. After discovery was complete, Falcon Mews moved for summary judgment on the grounds that the tread was not defective. The lower court dismissed the action. Because Carrion slipped on a worn marble stair tread, his complaint was properly dismissed. 2 Counterstatement of Question Presented While a property owner may be liable for a defective condition that it created or had notice of, there are some defects that are considered nonactionable. Worn or allegedly inherently slippery steps are nonactionable defects. Where, as here, the plaintiff attributed his fall to a worn, slippery step, did the lower court properly grant summary judgment? We say yes. 3 Counterstatement of Facts and of the Case Carrion slipped and fell on a staircase in the building at 2522 University Avenue, Bronx, New York (“the building”) on April 2, 2006 (R. 33). Faulkner purchased the building, a five-story walk-up built in 1921, in 1987 (R. 160, 163, 170, 213, 247). Bronx Maintenance Corp. managed the building (R. 164). Bronx Maintenance supplied the building with a superintendent who cleaned and made minor repairs (R. 168, 207). The building has not undergone significant alterations; the renovations that have occurred have not required issuance of a new Certificate of Occupancy (R. 171; 193). As a result, is governed by the Tenement House Act (R. 213). There are no elevators in the building (R. 163). Instead, the building has two staircases, a left and a right one (R. 174). The steps1 are made of marble and the landings are covered with tile (R. 151, 183, 184, 225). If a step became broken – it could not be repaired – Bronx Maintenance would purchase and install a new one (R. 181, 201, 208). Around noon on April 2, 2006, Carrion and his friend Jason went to the building to play video games with their friends Oscar and Gustavo (R. 69, 73). Carrion had been to the building one several previous occasions; he has several other friends who reside in the building (R. 87, 88, 89, 90). Oscar and Gustavo live in an 1 While the correct term is “tread,” because Carrion and Falkner referred to the tread as a step, it will be referred to as a step throughout. 4 apartment on the fourth floor (R. 70). Carrion took the right hand staircase to the fourth floor (R. 71). Once there, they realized that Oscar and Gustavo were not at home (R. 71). Carrion and Jason began descending the stairs to leave the building (R. 73). His accident occurred when he reached the top step of the third floor closer to the banister (R. 75, 77, 80). Carrion was not using the banister (R. 80). As he stepped down with his left foot, half of his foot hung over the nose of the step (R. 79). Carrion’s left foot slipped forward resulting in his fall (R. 81). Carrion admitted that there he observed no liquids, garbage, debris or gravel on the top step (R. 75, 91, 94). Instead, he claimed that the “slippery, shaved, worn out” condition of the top step caused his accident (R. 75, 92, 94). The tiled portion of the landing did not contribute to his fall (R. 98). Carrion did not attempt to reach for the banister as he fell and made no other attempts to arrest his fall (R. 91, 98). Carrion admitted that he made no complaints to the landlord or anyone affiliated with the building (R. 105). He also did not know of anyone who made complaints about the steps to the landlord or anyone who worked for the building (R. 105). Faulkner concurred in that he was not aware of any complaints about the steps (R. 208-209). After the accident, representatives from Parker & Waichman took photographs of the staircase (R. 66, 151). Carrion was not present when the photographs were 5 taken and did not take any of his own photographs (R. 66). Indeed, Carrion has not returned to the building since the accident (R. 106). Three months after his accident, Carrion commenced a personal injury action against Faulkner (R. 16-26). Carrion alleged that Faulkner had actual and constructive notice of the condition of the step (R. 35). Carrion also alleged that Faulkner violated Administrative Code §§ 27-127, 27-128 and 27-375(h) (R. 34). After discovery was complete, Faulkner moved for summary judgment arguing that the stairs were not defective (R. 10-15). In support of the motion, Faulkner relied on an affidavit from licensed architect Benjamin A. Leonardi (R. 212-214). Leonardi based his opinions on his inspection of the staircase, along with Carrion’s authenticated photograph of the staircase, bill of particulars, depositions of both parties and records from the Department of Buildings (R. 213). Leonardi also took photographs (R. 224-246). Contrary to Carrion’s claim that the steps were worn, Leonardi found that the marble was ¾” thick and, while it had normal wear, maintained its thickness at the edging where Carrion stepped (R. 214, 242). In opposition, Carrion relied, almost entirely on an affidavit from Stanley Fein, P.E. (R. 275-279). Fein opined that the marble treads were inherently slippery, per Administrative Code § 27-375, should have been surfaced with non-skid material, and had become worn failing “to provide proper foot to stair interface,” and violated Administrative Code §§ 27-127 and 27-128 (R. 276-277). According to Fein, the worn 6 condition of the treads developed over a period of years (R. 276). Notably, Fein did not review Carrion’s deposition (R. 275-277). The lower court (Thompson, J.S.C.) granted Faulkner’s motion (R. 7-9). In so doing, the court agreed that Leonardi demonstrated that the building conformed with the applicable Tenement House Law (R. 7). The court also rejected Fein’s opinion, that if the ball of one’s foot came into contact with the worn bullnose section, there would be insufficient traction, because it was not based on facts in evidence (R. 8). The court held that Carrion’s allegations were tantamount to the legions of cases in which the plaintiff claims that the reason for his fall was that the treads were smooth (R. 8). 7 Argument Faulkner was properly granted summary judgment “To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” Solomon v. City of New York, 66 N.Y.2d 1026 (1985). While it is well established that a property owner has a duty to keep its property in a “reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk,” Basso v. Miller, 40 N.Y.2d 233, 241 (1976), it is equally important to remember that a landlord is not the insurer of the safety of its tenants, see Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519 (1980); but merely has a duty to exercise reasonable care in maintaining its property in a reasonably safe condition. Thus, to impose liability on a defendant for a slip and fall on an allegedly dangerous condition, there must be evidence that the dangerous condition existed, and proof that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time. Putnam v. Stout, 38 N.Y.2d 607 (1976); Arnold v. New York City Hous. Auth., 296 A.D.2d 355 (1st Dep’t 2002); Frank v. Time Equities, 292 A.D.2d 186 (1st Dep’t 2002). Moody v. F.W. Woolworth Co., 288 A.D.2d 446 (2d Dep’t 2001). Where, as here, the plaintiff fails to demonstrate that the a dangerous condition existed or that the building owner created the defect or had actual or constructive notice of it, summary judgment is proper. 8 A. The allegedly worn condition was not an actionable defect This Court, and others, have consistently held that “[p]roof that a floor is ‘inherently slippery,’ standing alone, is insufficient to support a cause of action for negligence.” Caicedo v. Sanchez, 116 A.D.3d 553 (1st Dep’t 2014). Indeed, in Sims v. 3349 Hull Avenue Realty Co. LLC, 106 A.D.3d 466, 467 (1st Dep’t 2013), where the plaintiff “slipped and fell on a worn marble tread as be descended the stairs in defendant’s building,” this Court found that “[t]he worn marble tread is not an actionable defective condition.” See Murphy v. Conner, 84 N.Y.2d 969, 972 (1994) (“Plaintiff offers no evidence of the reason for her fall other than the tiles being smooth”); Budano v. Gurdon, 110 A.D.3d 543 (1st Dep’t 2013) (“a worn and slippery step, was too trivial to be actionable”); Savio v. Rose Flower Chinese Restaurant, Inc., 103 A.D.3d 575, 576 (1st Dep’t 2013) (“a worn and slippery step, at the entrance to a restaurant, was not actionable”); Katz v. N.Y. Hosp., 170 A.D.2d 345 (1st Dep’t 1991). In this case, relying on Carrion’s testimony that he fell due to the slippery, worn edge of the step, Faulkner demonstrated that there was no actionable defect at the building. Charley v. Goss, 12 N.Y.3d 750, 751 (2009) (a movant may demonstrate prima facie entitlement to summary judgment based on plaintiff’s deposition testimony); Fishman v. Westminster House Owners, Inc., 24 A.D.3d 394 (1st Dep’t 2005). Faulkner buttressed Carrion’s testimony with Leonardi’s affidavit. Leonardi took photographs and measured the thickness of the edge of the step at ¾” consistently across (R. 213- 214, 224, 234, 242). Cintron v. New York City Tr. Auth., 77 A.D.3d 410, 412 (1st Dep’t 9 2010) (“The injured plaintiff claimed only that the stair was slippery and appeared a little bit worn, while denying that any substance on the stairs caused him to fall, and the photographs of the stairs at the time of the accident do not reveal a trap or major defect”). Carrion’s opposition failed to raise an issue of fact regarding whether the allegedly worn marble steps constituted a dangerous condition. Indeed, Fein failed to refute Leonardi’s measurements or opinion that the edge of the step, where Carron slipped, was a uniform thickness (R. 275-277). Further, Fein’s pronouncement that “good and accepted engineering safety practice” would require the steps to have a coefficient of friction of .70 is baseless (R. 276). Sarmiento v. C & E Assoc., 40 AD3d 524 (1st Dep’t 2007) (“Although the engineer’s affidavit referenced the ‘ASTM Standard F609-96’ in defining the ‘Static Coefficient of Friction’ (SCOF) ratio, it did not reference any specific standard in asserting that a ‘minimum SCOF of 0.5 is the commonly accepted value for a non-slip (non-skid) surface’”); Jenkins v New York City Hous. Auth., 11 A.D.3d 358, 360 (1st Dep’t 2004) (no triable issue where expert did not identify the basis for the 0.5 coefficient-of-friction value he utilized as a standard). Finally, Carrion admits that photographic proof is sufficient to demonstrate that a dangerous condition does not exist. See DiJoseph Br. at p. 22. The photographs here clearly depict the conditions on the step and show that there was no actionable defect. Thus, the lower court properly granted summary judgment to Faulkner. 10 B. Faulkner did not have actual notice of a dangerous condition The Court of Appeals has held that defendants who do not have actual notice of a hazardous condition should not be liable for an incident that occurs. See Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986). Actual notice may be found when the defendant created the condition or was aware of its existence. Pianforini v. Kelties Bum Steer, 258 A.D.2d 634 (2d Dep’t 1999). Sufficient and detailed notice must be given to defendants as to the specific hazard, including an exact location. See Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972 (1994); Mitchell v. New York Univ., 12 A.D.3d 200 (1st Dep’t 2004). It is incumbent upon the plaintiff to demonstrate the “identity of the persons to whom notice of the condition was allegedly given and when and how it was given.” Carlos v. New Rochelle Municipal Hous. Auth., 262 A.D.2d 515 (2d Dep’t 1999). Aside from Faulkner’s argument that the condition was not actionable and contrary to Carrion’s claim that Faulkner did not demonstrate lack of notice, the record and Leonardi’s affidavit squarely addressed Faulkner’s lack of notice. See DiJoseph Br. at p. 17. At the outset, there is no viable claim that Faulkner created the condition. Rather, Carrion admits that the worn condition was one that developed through use over the years (R. 276). Further, Carrion admitted both that he did not complain to Faulkner or anyone associated with the building about the stairs and that he knew of no one who did (R. 105). Thus, Carrion’s claim that Faulkner had actual notice was properly dismissed. 11 C. Faulkner did not have constructive notice of a dangerous condition With respect to constructive notice, the Court of Appeals has reiterated the well-settled standard that, “[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” Gordon, 67 N.Y.2d at 837; Matcovsky v. Days Hotel, 10 A.D.3d 557, 558 (1st Dep’t 2004). A defendant will not be liable unless, in the exercise of due care, he should have had notice of the hazardous condition. See Simmons, 84 N.Y.2d at 972. If the condition exists for such a period of time that, in the exercise of reasonable care, a person would have remedied it, then the defendant will be charged with constructive notice. See Trujillo v. Riverbay Corp., 153 A.D.2d 793 (1st Dep’t 1989). A plaintiff’s failure to identify the length of time a dangerous condition existed, therefore, is fatal to a claim of constructive notice. Pomahac v. TrizecHahn 1065 Ave. of the Ams., LLC, 65 A.D.3d 462 (1st Dep’t 2009); Gibbs v. Port Auth. of N.Y., 17 A.D.3d 252 (1st Dep’t 2005); Matcovsky; Berger v. Isk Manhattan, Inc., 10 A.D.3d 510 (1st Dep’t 2004). And this Court has opined that it is “incumbent upon plaintiff to show that defendant had either actual or constructive notice of the alleged dangerous condition. Asking anything more of a moving defendant in such circumstances on the issue of notice would skew the burden of proof, which is always on the plaintiff.” Strowman v. A&P, 252 A.D.2d 384 (1st Dep’t 1998). 12 In his attempt to establish constructive notice, Carrion relied on Fein’s affidavit that the condition existed for a number of years and that the condition constituted a violation. Again, as described above, the allegedly worn condition was not an actionable defect. Further, whether a particular building code provision is applicable to an alleged defect is a question of law to be determined by the Court, and not a fact question for a jury. See DeRosa v. City of New York, 30 A.D.3d 323, 326 (1st Dep’t 2006); Messina v. City of New York, 300 A.D.2d 121 (1st Dep’t 2002) (“The interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court”); Gaston v. New York City Hous. Auth., 258 A.D.2d 220, 224 (1st Dep’t 1999). Indeed, this Court has declared that, “it is reversible error to permit a party to attempt to prove negligence by expert testimony regarding the meaning and applicability of a statute imposing a standard of care.” See Rodriguez v. New York City Hous. Auth., 209 A.D.2d 260 (1st Dep’t 1994). The Administrative Code does not apply to the building because it was constructed in 1921 (R. 170, 213, 247). See Altschuler v. Gramatan Mgt., Inc., 27 A.D.3d 304 (1st Dep’t 2006); Wyckoff v. Jujamcyn Theaters, Inc., 11 A.D.3d 319 (1st Dep’t 2004) (“The Building Code provision regulating ‘interior stairs’ on which plaintiff’s expert relies (Administrative Code of City of NY § 27-375) does not apply to stairs located in aisles (Administrative Code § 27-232 defining ‘interior stair’ and ‘exit’), and is in any event inapplicable because the theatre was constructed in 1921”). Further, it did not 13 undergo significant renovations that would require a new Certificate of Occupancy. Although this point was raised in Faulkner’s moving papers, Carrion failed to address it. Ignoring the fact that the Administrative Code would not apply to the building, Fein opined that three provisions were violated. Even if they were considered, they are insufficient to impose liability on Faulkner. Administrative Code § 27-375 regulates “interior stairs,” which the Building Code defines as being a “stair within a building that serves as a required exit.”2 To qualify as a means of egress, as defined in § 27–232, the staircase must lead “from the interior of [the] building to an open exterior space.” Martin v. DNA Rest. Corp., 103 A.D.3d 575 (1st Dep’t 2013); Gibbs v. 3220 Netherland Owners Corp., 99 A.D.3d 621 (1st Dep’t 2012) (“the stairs on which plaintiff allegedly slipped and fell (leading from the first floor to the lobby) were not “exit” stairs within the meaning of either paragraph 6.4.1.7.1(g) of section C26–292.0 of the 1938 Building Code (Administrative Code of City of N.Y. § C26–292.0). Because the staircase did not lead from the building directly to the outdoors, it would not be considered an exterior staircase and Administrative Code § 27-375 does not apply (R. 174). Further, Administrative Code §§ 27-127, 27-128, which have since been repealed, are nonspecific code provisions that have been adjudged insufficient for liability. Martin, 103 A.D.3d at 575. Thus, summary judgment was properly granted. 2 Id. at §§ 27-232, 27-355. Conclusion Based upon the foregoing, it is respectfully requested that this Court affirm the lower court's decision. Dated: New York, New York October 1, 2014 Respectfully submitted, GANNON, ROSENFARB, BALLETII &DROSSMAN By: <::£:1~<:£. ~~~ Lisa L. Gokhulsingh Attorneys for Defendants-Respondents John Faulkner, individually and doing business as Falcon Mews Associates and Falcon Mews Associates 100 William Street, Th Floor New York, New York 10038 (212) 655-5000 14 15 APPELLATE DIVISION - FIRST DEPARTMENT PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 NYCRR §600.10 that the foregoing brief was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface as used as follows: Name of typeface: Garamond Point size: 14 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 3,033. Dated: New York, New York October 1, 2014 Respectfully submitted, GANNON, ROSENFARB, BALLETTI & DROSSMAN 100 William Street, 7th Floor New York, New York 10038 (212) 655-5000