The following documents were read and considered in the motion submitted on May 12, 2022: NYSCEF Docs. #42-65 DECISION AND ORDER Defendants Joseph DiPrima (hereinafter “DiPrima”) and Jeannie Annunziato (hereinafter “Annunziato”) (collectively “Defendants”) move this Court pursuant to CPLR §3212 for an Order granting them summary judgment dismissal of the Complaint filed by Plaintiffs Robert Tregillies (hereinafter “Tregillies”) and Evangelia Minaidis-Tregillies (hereinafter “Minaidis-Tregillies”) (collectively “Plaintiffs”). The Court hereby grants Defendants’ motion in part and denies it in part. STATEMENT OF FACTS Plaintiffs commenced this action for negligence, violation of the Building Code and Labor Law violations by filing a Summons and Complaint on May 14, 2019. Tregillies represents that during the course of his employment with Verizon as a technician, he made an early morning service call on September 9, 2018, to the Defendants’ home. Tregillies made such call regarding an issue of pixilation in the Defendants’ home. DiPrima and his daughter, Annunziato, own the property located at 760 Annadale Road, Staten Island, New York (hereinafter the “Property”). DiPrima has lived at the Property for more than fifty-one years. In 1984, the home was remodeled, and a second floor was added. The renovations included moving the front door of the home to open inward, which extended the first floor living area and created a step up from the foyer into the living room. Tregillies represents that prior to September 9, 2018, he never responded to a service call at the Defendants’ home. Upon arriving to the Property on such date, the front door was open. Tregillies testified during his deposition that the glass storm door let the sunlight in. He also testified that the floor was neither wet nor slippery. (See Exhibit “B” p. 93 of Tregillies’ Deposition.) Tregillies entered the home through the front door where there was a single step up to gain access to the living room and the rest of the home. Tregillies introduced photos of the front entrance to demonstrate the step up marked as Exhibit “F” and such photos were Plaintiffs’ Exhibits 1,3,4,5 and 7. According to Tregillies’ testimony, there is a large square beige speckled tile when one enters the home that allows the front door to open inward. After the square, there is a step up into the living room of the home that is covered in brown wood. Tregillies testified that there were three people in the home that day, specifically an older gentleman, a woman and a cleaning woman. According to Tregillies, he fell on the fourth time going down the step up while traversing to his truck. Tregillies claimed his left knee “buckled” and he fell backwards. (See Exhibit “G” Emergency Room Report). Tregillies claimed that the heel of his left foot may have caught the living room step. (See Exhibit “B” p.55-56 of Tregillies’ Deposition). A non-party deposition was also taken of Andre Segarra, a Verizon field tech and union representative (hereinafter “Segarra”). Segarra testified that part of his job description is to respond to accident scenes if a Verizon worker is hurt on the job. Segarra determines if the employee was at fault and if proper safety measures were taken. (See Exhibit “2″ transcript of Segarra’s EBT at pages 11-15). During his deposition, Segarra stated that he almost tripped and fell himself where Tregillies tripped (p. 15). Defendants’ Motion Defendants currently move this Court for an Order granting them summary judgment, arguing that no issues of fact exist as to Plaintiffs’ negligence claim and causes of action under the Building Code of 1938 and the Labor Law. In support of their motion, Defendants submit the affidavit of Registered Architect Charles Schaeffer (hereinafter “Schaeffer”), who represents that he inspected the Property and interviewed DiPrima. Schaeffer described the condition of the area at issue and discussed the engineer report of Plaintiffs’ expert, Robert Fuchs (hereinafter “Fuchs”). According to Schaeffer, nothing in Fuchs’ affidavit demonstrated that the single-riser step violated any Building Code, regulation or industry standard that existed at the time the 1938 Building Code was adopted or at the time renovations were performed to the Property in 1984. Schaeffer further stated that based upon Tregillies’ testimony that it was sunny on the day of the incident, the colors, textures of the materials and the subject single-riser step would have been illuminated and the change in the flooring material provided a visual cue to the difference in elevation. In their Affirmation in Support, Defendants further argued that the step up in question is open and obvious and not inherently dangerous. With respect to Plaintiffs’ claims under the Labor Law, Defendants argued that such claims must be dismissed since the Property was not a construction worksite and Tregillies was not engaged in any of the covered activities under the Labor Law. Plaintiffs’ Opposition In support of its opposition to Defendants’ motion, Plaintiffs rely upon the affidavit of Fuchs, who performed an inspection of the Property on September 10, 2020. In his affidavit, Fuchs stated that at the entrance of the home, there was a square beige speckled colored granite tile in the foyer that led into the brown wood floor in the living room. The wood floor was higher than the floor in the foyer, thereby causing a step up between the foyer and the living room. Fuchs found that the riser between the foyer and the living room was not readily perceptible or apparent. According to Fuchs’ affidavit, the step up brown wooden floor blended in and merged with the beige speckled colored floor in the foyer, which created the appearance that the floors were on the same level. Fuchs stated that such created an “optical confusion” that posed a safety hazard and that there were also no clues, such as handrails, to alert a person that there was a step up between the foyer and the living room. Fuchs acknowledged that while the safety and engineering industry had long considered a single step up a trip hazard, there were no Building Codes regarding such condition being deemed a violation. Fuchs commented that there were only regulations regarding this condition and the Building Code of 1938 did not apply to one family dwellings. Therefore, Fuchs stated, the step up did not violate any code. According to the Plaintiffs, Fuchs’ affidavit and the testimonies of both Tregillies and Segarra demonstrated that the condition was dangerous, and not open and obvious. Plaintiffs represent that the Defendants created the condition and had notice of it. Based upon Defendants’ failure to maintain their property in a reasonably safe condition, Plaintiffs’ request that Defendants’ motion for summary judgment be denied. DISCUSSION A motion for summary judgment requires that the movant establish its entitlement to judgment as a matter of law by demonstrating the absence of a material issue of fact. (See Union Mut. Fire Ins. Co. v. Johnson, 189 AD3d 1519, 1520 [2d Dept., 2020]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). Once the moving party has demonstrated the entitlement to summary judgment, the burden shifts to the opposing party, who must demonstrate the existence of factual issues to deny summary judgment through admissible evidence. (See Moore v. 3 Phase Equestrian Ctr., Inc., 83 AD3d 677, 679 [2d Dept 2011]; Zuckerman v. City of New York 49 NY2d 557 [1980]). Summary judgment should be denied where there is any doubt that a triable issue of fact exists, or an issue of fact is arguable. (See American Home Assurance Co. v. Ameriford International Corp., 200 A.D.2d 4722 [1994]). The primary function of a Court is issue finding as opposed to issue determination. (Weiner v. Ga-Ro Die Cutting, 104 AD2d 331 [1984]). Based upon the papers submitted in connection with this motion, including the statement of material fact and counter statement of material fact provided by counsel for both parties in this action, the Court finds that issues of fact exist as to whether Defendants were negligent due to renovations done to the Property, particularly with respect to the step up located between the foyer and living room that Tregillies allegedly fell on. In the matter of Katz v. Westchester County Health Care Corp., 82 AD3d 712, 713 [2011], the Court held that “a property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous” (id.; see Neiderbach v. 7-Eleven, Inc. 56 AD3d 632, 633 [2008]). In Russo v. Frankels Garden City Realty Co., 93 AD 708, 714 [2012], the Appellate Division Second Department held that “the evidence submitted in support of the defendant’s motion failed to eliminate all triable issues of fact as to whether the single-step up riser was an open and obvious condition and not inherently dangerous.” In Roros v. Oliva, 54 AD3d 398, (2008), the Supreme Court, Appellate Division Second Department, reversed the Supreme Court’s finding of summary judgment because “plaintiffs submitted evidence sufficient to raise a triable issue of fact as to whether the single step riser was an open and obvious condition (See Kempter v. Horton, 33AD2d 868, 869 [2006]).” The Court found that an issue arose when “a person unfamiliar with premises could reasonably perceive the change in elevation between the foyer and the great room or whether the subject area created ‘optical confusion.’ (Chafoulias v. 240 E. 55th St. Tenants Corp., 141 AD2d 207, 211 [1988]; see Scher v. Stropoli, 7 AD3d 777 [2004].)” In the matter of Matheis v. Hunt Country Furniture Inc., 140 AD3d 713 (2016), the Supreme Court Appellate Division Second Department, agreed with the Court in Roros v. Oliva, stating that plaintiffs’ submissions presented issues of fact because “the plaintiff, who was unfamiliar with the premises, could reasonably perceive the existence of a change of in elevation between the single-step riser and the platform below it, and whether the subject area created ‘optical confusion’ (see Roros v. Oliva, 54 A.D.3d at 400).” Here, the Court finds that Plaintiffs have submitted evidence sufficient to raise a triable issue of fact as to whether the step up was an open and obvious condition and whether the subject area created an “optical confusion.” (See id). Tregillies himself testified about the condition of the step up and stated that he fell on his fourth time of traversing the step up despite the floor not being wet or slippery. Tregillies also testified regarding the color of the square and step up into the living room that was covered in dark brown wood. Of particular significance is the testimony of Segarra and Fuchs’ affidavit. According to Segarra, he found Tregillies to not be at fault for his injury because he too almost tripped and fell at the front entrance of the Property during his inspection on the day of the incident. Fuchs, who inspected the Property, attested that the step up between the foyer and living room created an “optical confusion” that posed a safety hazard and that there were also no clues such as handrails or other clues to alert a person that there was a step up between the foyer and the living room. The Court finds that based upon such testimony and the papers submitted in opposition to Defendants’ motion, Plaintiffs have shown that an issue of fact exist as to whether the step up was an inherently dangerous condition that Defendants were obligated to warn Tregillies about or protect him from under the principle of negligence. However, the Court finds that Plaintiffs have failed to demonstrate an issue of fact exists with respect to their remaining allegations against Defendants. While Plaintiffs argue that Defendants are not entitled to summary judgment based upon their violation of the Building Code of 1938, the Building Code clearly does not apply to the step up. The Supreme Court Appellate Division, Third Department held in Barley v. Robert J. Wilkins 122 A.D.3d 1116 (2014) that the existence of a riser is not a building code violation because potential liability with respect to a riser is based on common-law negligence principles. As shown by the evidence submitted, the safety and engineering industry considered a single step up a trip hazard but there are only regulations, and the Building Code of 1938 is not retroactive. Plaintiffs’ own expert concurs with Defendants’ expert, stating in that the Building Code of 1938, which was applicable during the time of original construction, did not prohibit the single-step riser located at the main entry door of the Property. Therefore, the step up was not a violation of the Building Code of 1938 and Plaintiffs’ allegations against Defendants under this provision must be dismissed. The Court further finds that Plaintiffs have failed to show an issue of fact existed as to their allegations against Defendants under the Labor Law. To violate the Labor Law, the parties’ residence must have been under construction and involved construction related activity. Pursuant to Labor Law §240(1), Tregillies would have needed to suffer injuries during the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. For liability to attach under Labor Law §241(6), Tregillies would need to have been injured in an area where construction, evacuation or demolition work was being performed. This clearly is not the case here, as the Property was not under construction and the renovations at issue were done in 1984. Furthermore, even if Defendants did violate the Labor Law, they would have been entitled to an exemption under Labor Law §240 (1) because Defendants did not direct, control, or supervise work performed by Tregillies. Based upon such an exemption and the inapplicability of the Labor Law, the Court finds that Defendants are entitled to summary judgment dismissal of such claims under the Labor Law. CONCLUSION Based on the foregoing, the motion for summary judgement brought by Defendants is denied as to Plaintiffs’ allegations against Defendants for negligence based on triable issues of fact that exist. However, the Court does grant Defendants’ motion to the extent that Plaintiffs’ claims against the Defendants under the Building Code of 1938 and the Labor Law are hereby dismissed. Accordingly, it is hereby ORDERED that Defendants’ motion is granted to the extent that Plaintiffs’ causes of action under the Building Code of 1938 and the Labor Law are dismissed; it is further ORDERED that the remainder of Defendants’ motion is hereby denied; and it is ORDERED that a compliance conference date is set for August 19, 2022 Dated: July 11, 2022
