In Kellman, issues of fact existed barring summary judgment in favor of the owner where a tenant climbed out of her apartment onto a fire escape and sustain injuries by inadvertently misstepping and falling through the stairway opening in the fire escape landing.Summary of this case from Flores v. Nikac
Argued November 28, 1995
Decided December 21, 1995
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Beverly S. Cohen, J.
O'Connell Gimble, New York City ( Elliot L. Evans and Robert Zicklin of counsel), for appellant.
Schneider, Kleinick, Weitz, Damashek Shoot, New York City ( Brian J. Shoot and Harry Steinberg of counsel), for respondent.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
An owner of land has a duty under the common law to maintain its premises "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" ( see, Basso v Miller, 40 N.Y.2d 233, 241). Contrary to defendant landlord's contentions, its alleged compliance with the applicable statutes and regulations is not dispositive of the question whether it satisfied its duties under the common law ( see, Lesocovich v 180 Madison Ave. Corp., 81 N.Y.2d 982).
The Appellate Division correctly concluded that the record presents triable issues of fact, regardless of whether the building is subject to or in compliance with section 53 of the Multiple Dwelling Law or section 27-380 of the Administrative Code of the City of New York. Specifically, questions are presented (1) whether it was foreseeable that tenants would use the fire escape landings to clean windows or for other purposes, and, if so, (2) whether defendant landlord exercised reasonable care to protect tenants from injuring themselves by falling through the unguarded hatchways in fire escape landings.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.
Order affirmed, etc.