The following papers numbered 1 to 3,Read on this Defendant’s Motion for Summary JudgmentOn Calendar of 10/30/17Notice of Motion-Exhibits and Affirmation 1Affirmation in Opposition 2Reply Affirmation 3 Upon the foregoing papers, defendant’s motion for summary judgment is granted for the reasons set forth herein.The within action involves plaintiff’s claim that he was injured on September 27, 2011 as a result of a fall on the exterior stairs at the defendant’s premises located at 65 East Gun Hill Road, Bronx, New York 10469. Plaintiff claims that she was caused to fall when, as she was climbing the second of the four exterior outdoor steps leading into the building, someone was exiting the building at the same time. Plaintiff moved to the right to allow the person to exit, lost her balance and reached out to her right to grab the handrail, however, no handrail was present at that level of the steps. Plaintiff testified that the handrail did not extend the length of the four steps. Plaintiff claims that it was also dark in front of the building as one of the two of the outdoor lights was out and had been for months prior to her accident. Plaintiff argues that she was caused to fall because of the inadequate handrail and the lighting condition in front of the building.Nicholas Gattica, defendant’s superintendent, testified at a deposition that there are two light fixtures present on either side of the exterior stairway which are controlled by a sensor that measures the presence of light outside of the building. Mr. Gattica also confirmed that there are two handrails that are fastened to the walls adjacent to the exterior stairs. He denied being aware of any changes to the stairway and/or exterior of the entrance area. Mr. Gattica testified that he witnessed plaintiff’s accident; “I saw when they opened the door and pushed and she fell.” “[Plaintiff] was trying to put the key inside the door and I guess she wasn’t looking up. So as the other person is coming outside of the building and didn’t notice her either and opened the door and pushed her and she fell.Defendant submits the affidavit of Scott Derector, professional engineer, who states that he inspected the subject staircase and exterior of the front of the premises and analyzed plaintiff’s recitation of how the accident occurred. Mr. Derector’s affidavit sets forth that defendant satisfied its duty to maintain the subject area in a reasonably safe condition. Specifically, Mr. Derector states that there was no requirement that a longer railing adjacent to the subject staircase. His measurements and analysis of the stairway revealed that plaintiff claims that the condition of the stairway caused her accident patent speculation coupled with a distortion of the physical reality of the stairway’s dimensions. Mr. Derector offers a detailed explanation for why the provisions of the City of New York Building Code (“Building Code”) are inapplicable to this building as the building was built in 1922. The 1938 Building Code did not regulate structures that were already in existence as of that date and the 1968 Building Code is inapplicable to this building. From his review of the building records for the premises on file with the Department of Buildings, the deposition testimony of all parties, photographs of the staircase, his inspection of the site, Mr. Derector states his opinion within a reasonable degree engineering certainty that the stairway and handrails conform to the applicable codes and industry practices that were prevailing when the building was built; that defendant properly maintained the premises and stairway in proper condition; and that the subject stairway afforded a reasonable degree of safety to those who use it and exercise a reasonable amount of caution while ascending or descending.Defendant moves for summary judgment arguing that there was no actionable dangerous or defective condition at the premises that caused plaintiff’s accident. Defendant contends that plaintiff’s claim that lack of light or the condition of the stairway railings caused her accident fails to raise any material issues of fact. Moreover, defendant argues that plaintiff simply lost her balance and fell and that is the reason for her accident. Plaintiff argues that the proximate cause for her accident was the absence of light and the absence of a handrail at the level of the stairs where she lost her balance.The court’s function on this motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). The movant must come forward with evidentiary proof in admissible form sufficient to direct judgment in its favor as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. Stone v. Goodson, 8 N.Y.2d 8, (1960); Sillman v. Twentieth Century Fox Film Corp., supra.The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the “burden of production” (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus, if evidence is equally balanced, the movant has failed to meet its burden., 300 East 34th Street Co. v. Habeeb, 683 N.Y.S.2d 175 (R1st Dept. 1997).The owner of a premises has a non-delegable duty under statute to keep its property in good repair. See, McKinney’s Multiple Dwelling Law §78. It is well established that an owner of a premises has a duty to keep its property in a “…reasonably safe condition, considering all of the circumstances including the purposes of the person’s presence and the likelihood of injury…” Macey v. Truman, 70 N.Y.2d 918 (1987); Basso v. Miller, 40 N.Y.2d 233, 241 (1976). In order to recover damages for a breach of this duty, plaintiff must demonstrate that the landlord created or had actual or constructive notice of the dangerous or defective condition. Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969 (1994); Leo v. Mt. St. Michael Academy, 708 N.Y.S.2d 372 (1st Dept. 2000). In order to charge a defendant with constructive notice, the defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit its discovery and remedy. Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 (1986).In the instant matter, plaintiff failed to establish that defendant breached any duty of care owed to her, particularly since in order for her to defeat this motion for summary judgment, she must establish the existence of a “hazardous condition”. See, Pepic v. Joco Realty, Inc., 628 N.Y.S.2d 89 (1st Dept. 1995). Here, plaintiff clearly failed to do so. See, Jones v. Presbyterian Hospital in the City of New York, 771 N.Y.S.2d 109 (1st Dept. 2004)(Owners of real property lack any duty to warn or otherwise protect visitors from a condition that poses no reasonably foreseeable hazard). Plaintiff here readily admitted during her deposition testimony that the step from which she fell was not broken or slippery, and instead acknowledged that she lost her balance. Specifically, plaintiff testified that “I went to move to let — to make space fo a tenant that was coming out of the building. When I went to move to the right, I couldn’t see. It was dark. I lost balance.” Later in her testimony, plaintiff repeats that “[a]s I moved to my right, it was dark, first of all. It was dark. As I moved to the right, I lost my balance.” Plaintiff had resided at the subject premises for 31 years prior to the date of her accident, therefore, the condition of the stairway and handrails should have been well known to her. See, Verderese v. 3225 Realty Corp., 46 N.Y.S.3d 873 (1st Dept. 2017)(Defendant also made a prima facie showing that the stairs did not constitute a dangerous condition or hidden trap. Plaintiff testified that she had successfully traversed the steps without incident for approximately 40 years, knew that the stairs were not equipped with a handrail, and tripped after she failed to raise her foot all the way to the top part of the first step, causing her to make a misstep).Moreover, plaintiff failed to submit an expert affidavit to contradict or raise any issues regarding defendant’s expert’s opinion. See, Pwangsunthie v. Marco Realty Associates, L.P., 26 N.Y.S.3d 9 (1st Dept. 2016)(Defendant demonstrated that the steps were without defects or debris, and were well lit. Plaintiff failed to contradict, or submit evidence to rebut the showing that the two steps did not constitute a dangerous condition on the premises). Here, Mr. Derector opines that defendant did not violate any applicable Building Codes or industry standards, that the handrails and stairway conform to the applicable codes and industry practices that were prevailing when the building was built, and based on his review and inspections, found that defendant properly maintained the premises. See, Baker v. Roman Catholic Church of Holy See, 26 N.Y.S.3d 48 (1st Dept. 2016)(Affirming grant of summary judgment where plaintiff’s expert’s opinion that defendant was obligated to replace the small step with a ramp and install a handrail at the accident location as he failed to set forth a violation of any specific industry-wide safety guideline in effect at the time of the church’s construction more than 140 years ago and prior to the adoption of the building codes); Burke v. Canyon Road Restaurant, 876 N.Y.S.2d 25 (1st Dept. 2009)(Based on testimony that there was no debris or water on the ground where plaintiff fell, that she did not trip or slip on anything, that the area of the accident was illuminated, and that the general manager of the restaurant for the last several years was not aware of any complaints or accidents, or code violations or repairs of the front step, defendants demonstrated their prima facie entitlement to summary judgment); Sakol v. Kirsch, 808 N.Y.S.2d 224 (1st Dept. 2006)(Affidavit of plaintiff’s engineering expert was insufficient to defeat defendants’ motion for summary judgment inasmuch as it failed to set forth a violation of any specific safety guidelines in effect at the time of the mansion’s construction more than 100 years ago and prior to the adoption of building codes); Boodie v. Town Hall Foundation, 773 N.Y.S.2d 282 (1st Dept. 2004) (Defendant demonstrated that the premises were not in violation of any aspect of the Building Code as applicable to defendant’s landmark theater, which was constructed well before the promulgation of the current regulations).Furthermore, plaintiff’s contention that the decorative railing that was present on the wall adjacent to the stairs should have been larger and/or that a lack of light fails to raise any issues of fact. Mr. Derector’s expert affidavit sets forth that the condition of the stairway as described by plaintiff satisfied all applicable Building Codes and industry standards. See, Jefferson v. Temco Services Industries, Inc., (1st Dept. 2000)(plaintiff has failed to raise a triable issue with respect to his claim premised on the purportedly defective design of the handrail, because he has offered no non-speculative ground in support of his theory that he would have recovered his footing had the handrail projected an additional quarter-inch from the wall and so been free of the claimed defect). Plaintiff claims that the right handed outdoor light was not on at the time of the accident. However, Mr. Derector’s inspection and analysis of the site revealed that it would have been physically and logically impossible for the light from the inoperative fixture to reach the area of the stairway where plaintiff claims she fell, whereas light from the operative second fixture did reach this area. In any event, the absence of any Building Code or industry requirement to provide more light than was actually present at the time of the accident is fatal to plaintiff’s claim that defendant breached some duty of care.Accordingly, defendant’s motion for summary judgment is granted and the complaint is dismissed.This constitutes the decision and Order of this Court.Dated: October 9, 2018
