The following e-filed documents, listed by NYSCEF document number (Motion 003) 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. DECISION + ORDER ON MOTION The instant action arises from an accident that occurred on July 31, 2019 when plaintiff Josephine Riederer, accompanied by her friend Dana Kirkegaard, stood on a fire escape landing at Ms. Kirkegaard’s apartment at 302 Mott Street, New York, NY, after hearing screams from outside, and fell through the opening thereat. There was no guardrail surrounding the opening. The building was owned by defendant Schulmann Properties International and managed by defendant Brownstone Professional Services Corp. Non-Party Economy Services Corporation performed repair work on the building. Defendants Schulmann Properties International, LLC and Brownstone Professional Services Corp. move here for partial summary judgment as follows: i) establishing plaintiff’s comparative fault; ii) dismissing all alleged statutory and regulatory violations in plaintiffs Complaints and Bills of Particulars with prejudice; and iii) dismissing plaintiffs’ failure to provide proper illumination claim with prejudice. Plaintiff also filed a cross-motion for summary judgment as follows: i) granting leave for plaintiff to supplement her bill of particulars to add a violation of Section 3-8.1 of the Rules and Regulations of the Tenement House Department for the City of New York of 1937; and ii) summary judgment on defendants’ violations of 1 RCNY 15-10(r)(2) and Section 3-8.1 of the Rules and Regulations of the Tenement House Department for the City of New York of 1937. It is well-established that the “function of summary judgment is issue finding, not issue determination” (Assaf v. Ropog Cab Corp., 153 AD2d 520 (1st Dept 1989) (quoting Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957])). As such, the proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985)). Once a party has submitted competent proof demonstrating that there is no substance to its opponent’s claims and no disputed issues of fact, the opponent, in turn, is required to “lay bare [its] proof and come forward with some admissible proof that would require a trial of the material questions of fact on which [its] claims rest” (Ferber v. Sterndent Corp., 51 NY2d 782 (1980)). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted (See Dauman Displays, Inc. v. Masturzo, 168 AD2d 204 (1st Dept 1990)). Defendants move to dismiss plaintiff’s claim for failure to provide proper illumination, arguing that no cases impose a common-law duty upon the landlord to provide artificial illumination for fire escapes, absent some defective condition, unusual hazard or peculiar danger (see Bohlig v. Schmitt, 5 A.D.2d 1002 (2nd Dept 1958). Defendants also argue that the Court must establish plaintiff’s comparative fault, since it is negligent per se to walk into invisible places and that “ordinary prudence requires that [s]he refrain from proceeding further without first ascertaining if [s]he may safely proceed” (Halstead v. Kennedy Valve Mfg. Co., 36 AD2d 1005 (3d Dept 1971), affd 31 NY2d 901 (1972)). Defendants maintain that plaintiff should have, but failed to, use her phone to illuminate the fire escape or to descend the interior stairway to the ground floor. “It is well settled that instruction on the question of comparative negligence should be given to the jury where there is any valid line of reasoning or permissible inferences which could possibly lead rational individuals to the conclusion of negligence on the basis of the evidence presented at trial” (Shea v. New York City Transit Auth., 289 AD2d 558 (2nd Dept 2001)). “A landowner must act as a reasonable [person] in maintaining [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. The scope of any such duty of care varies with the foreseeability of the possible harm” (Witherspoon v. Columbia Univ., 7 AD3d 702 (2nd Dept 2004)). The Court grants dismissal of this particular claim. According to defendant’s engineering expert Vincent Ettari, P.E., “the Fire Escape was adequately lighted” (Exh K, para 66). Plaintiff conceded in her opposition that “There is no proof that plaintiff was comparatively negligent as a matter of law for going onto the fire escape platform that night. The evidence shows that there was adequate light enabling plaintiff to see the fire escape platform and defendant’s own expert concedes the fire escape was “‘adequately lighted’…” (NYSCEF doc 94, p 7). Plaintiff testified to hearing a woman screaming outside, and although she later stated that the fire escape was “dark”, she also indicated that when she stepped out with her left foot, she was able to see the platform, a “general area as [she] was facing it” (Exh C, p 16, 42). Ms. Kirkegaard also testified that she was able to see the platform of the fire escape and the front rail of the fire escape (Exh D, p 31). Although there was “quite a bit of light” on the ground, Ms. Kirkegaard indicated that she could “kind of see” the silhouette of the fire escape (Exh D, p 31). Thus, plaintiff’s claim for failure to provide proper illumination is dismissed, with prejudice, and defendants’ motion to establish plaintiff’s comparative fault is denied as moot. * * * Next, the Court shall address defendants’ motion for summary judgment to dismiss plaintiff’s claims for violations of alleged statutory and regulatory provisions. Plaintiff alleges that defendants failed to install a guardrail on the fire escape in violation of statutory and regulatory provisions1. Defendants argue that none of the provisions apply to the subject building here or its fire escape, which were erected before the enactment of these provisions and were “grandfathered” into compliance with them (see Morris v. Pavarini Const., 9 NY3d 47 (2007)). According to defendants, under §27-111 of the 1968 New York City Administrative Code, a building constructed prior to 1968 is “grandfathered” into succeeding codes and need only comply with the law in effect at the time of the construction: Continuation of lawful existing use. The lawful occupancy and use of any building, including the use of any service equipment therein, existing on the effective date of this code or thereafter constructed or installed in accordance with prior code requirements, as provided in section 27-105 of article one of this subchapter, may be continued unless a retroactive change is specifically required by the provisions of this code. However, defendants note the following two exceptions: §27-115 Alterations exceeding sixty percent of building value. If the cost of making alterations in any twelve-month period shall exceed sixty percent of the value of the building, the entire building shall be made to comply with the requirements of this code, except as provided in section 27-120 of this article. §27-116 Alterations between thirty percent and sixty percent of building value. If the cost of making alterations in any twelve-month period shall be between thirty percent and sixty percent of the value of the building, only those portions of the building altered shall be made to comply with the requirements of this code, except as provided in sections 27-120 and 27-121 of this article. Defendants rely upon their expert engineer Mr. Ettari in demonstrating that the building’s renovations had not exceeded 60 percent of its value and that alterations were not performed on the fire escape since the 1968 code (see Exh K, 42-55). Defendants also provided an Affidavit by Rohit Samai, the CFO of J. Mirashi Realty Corp, who had maintained the building expenses, to support their position that the building’s renovations and improvements did not exceed 60 percent of its value and that no alterations were performed on the fire escape since the 1968 code (Exh L). Regarding plaintiff’s claims that defendants violated the Multiple Dwelling Law, defendants state that “§53. Fire-escapes” applies to “Every fire-escape erected after April eighteenth, nineteen hundred twenty-nine” and that the subject fire escape was erected twelve years prior in 1907. Defendants argue that 1 RCNY §15-10(a) and 1 RCNY §15-10(r)(2) applies only to fire escapes built after April 18, 1929. As to Multiple Dwelling Law §232, defendant makes similar arguments. Plaintiff contends that §15-10(r)(2) Fire Escapes, Fire Stairs and Fire Towers provides that a fire escape opening must be guarded “on all new balconies, and also, when necessary, around hatchways on existing balconies”: Openings. The openings for stairways in all balconies shall be not less than twenty-one inches (21″) wide, and of such length as to provide at least six feet six inches (6′-6″) clear headroom on all stairways at every tread, and shall have no covers of any kind. A round, iron guard rail, three-quarter inch (3/4″) in diameter shall be provided around all hatchways on all new balconies, and also, when necessary, around hatchways on existing balconies. Such guard rails shall be at least two feet six inches (2′-6″) high and shall be properly braced at intervals of three feet (3′) The brace from guard rail to the front top rail shall be so arranged to allow six feet six inches (6′-6″) of headroom on the stairway. Plaintiff submits an affidavit by Scott Silberman as an expert engineer to support that such applies to existing balconies, including those erected prior to April 18, 1929 (Exh N). An email from the New York City Department of Buildings dated August 27, 2019, citing §15-10(r)(2) is also provided, opining that “Based on the information provided, a guardrail is required around the hatchway” (Exh P). According to a Transaction Report, a payment was made on May 5, 2010 to “Sanford Iron Work Inc.” for “Installed New Fire Escape” (Exh T, p 59). Thus, the Court finds that questions of fact exist as to whether a new fire escape was installed in the subject building for the application of both MDL §53 and RCNY 15-10(r)(2). In view of the foregoing and the papers submitted, the Court is not inclined to grant defendants’ motion for summary judgment, neither will the Court grant plaintiff’s cross-motion pursuant to 1 RCNY 15-10(r)(2). * * * Finally, the Court shall address plaintiff’s cross-motion to amend the bill of particulars and for summary judgment as to §3-8.1 of the Rules and Regulations of the Tenement House Department for the City of New York of 1937. Plaintiff argues that the supplemental bill of particulars does not provide new facts or theory of negligence, but identifies a similar statute violated by defendants in failing to install a railing. Defendants contend that a party is not permitted to amend the bill of particulars unless there is a showing of special and extraordinary circumstances (see Lorincz v. Castellano, 208 A.D.3d 573 (2nd Dept 2022)). Pursuant to CPLR 3042(B), “Amendment. In any action or proceeding in a court in which a note of issue is required to be filed, a party may amend the bill of particulars once as of right prior to the filing of a note of issue.” The Court notes that the note of issue was filed by plaintiff on March 2, 2023, and plaintiff filed the instant motion nearly five months thereafter on August 16, 2023. However, the Court finds that no new factual allegations or theories of liability are raised in the amended bill of particulars since plaintiff had alleged in the original bill of particulars a lack of the required railing in the fire escape under §15-10(r)(2), which is identical to §3-8.1 of the Rules and Regulations of the Tenement House Department for the City of New York of 1937 (see Harris v. City of New York, 83 AD3d 104 (1st Dept 2011)). However, the Court is denying plaintiff’s motion for summary judgment on §3-8.1, given the issues of fact regarding an installation of a fire escape on the building for the subject code to be in effect. * * * Accordingly, it is hereby ORDERED, that defendants’ motion for summary judgment is denied, except that plaintiff’s claim for failure to provide proper illumination is dismissed; and it is further ORDERED, that plaintiff’s cross-motion for summary judgment is denied; and it is ORDERED, that plaintiff’s motion to amend the bill of particulars is granted. The foregoing constitutes the decision and order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: August 30, 2024
