Deykina v. Chattin

Filing 35

OPINION AND ORDER denying 32 Defendant's Motion for Summary Judgment. Ordered by Judge Allyne R. Ross on 9/15/2014. (Rubin-Wills, Jessica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------NELYA DEYKINA,
Plaintiff,
-againstJAMES CHATTIN,
Defendant.
--------------------------------------------------------------------ROSS, United States District Judge:

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12-CV-2678 (ARR) (CLP)
NOT FOR ELECTRONIC
OR PRINT PUBLICATION
OPINION & ORDER

Plaintiff Nelya Deykina brings this diversity suit seeking damages for personal injuries
that she sustained when she slipped and fell on a staircase at premises owned by defendant James
Chattin. Now before the court is defendant’s motion for summary judgment. For the reasons set
forth below, defendant’s motion is denied.

BACKGROUND
The following facts are undisputed. 1 Plaintiff is a resident of Brooklyn, New York. Dep.
of Nelya Deykina (“Pl. Dep.”), Dkt. #32, Ex. C, at 4. Defendant is a resident of Warminster,
Pennsylvania. Dep. of James Chattin (“Def. Dep.”), Dkt. #32, Ex. D, at 4. Defendant owns a
house in the Pocono Mountains located at 657 Old Stage Road, Albrightsville, Pennsylvania.
Def. Dep. 7. Defendant purchased the house with his wife in 2007, and they use it as a vacation
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Defendant has provided a statement of undisputed facts accompanying his motion for summary judgment, pursuant
to Local Rule 56.1. Dkt. #32, Ex. 1. Plaintiff has included a Local Rule 56.1 statement with her opposition but has
not provided any paragraph-by-paragraph responses to defendant’s Local Rule 56.1 statement. As defendant argues
in his reply, where plaintiff has failed to oppose the facts in defendant’s Local Rule 56.1 statement by citation to
admissible evidence, the facts are deemed admitted. Def.’s Reply Mem. of Law (“Def.’s Reply”), Dkt. #33, Ex. 1, at
1-2; see Titan Indem. Co. v. Triborough Bridge & Tunnel Auth., Inc., 135 F.3d 831, 835 (2d Cir. 1998). I note,
however, that the relevant facts regarding plaintiff’s fall are essentially undisputed. The parties’ disagreements relate
to the interpretation of expert reports, the relevant legal standards, and the application of those legal standards.

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home and rental property. Id. at 13-14.
Plaintiff’s daughter Olga Deykina, who is also a resident of Brooklyn, rented defendant’s
property in the Poconos for the month of July 2011. Pl. Dep. 7-8, 13. Olga Deykina and
defendant signed a “Rental Agreement” specifying that seven adults and three children would
reside at the premises from July 1, 2011, through July 31, 2011. Decl. of Kelly E. Wright
(“Wright Decl.”), Dkt. #32, Ex. E, at 3. A provision of the rental agreement entitled “Repairs”
states: “In the event of any problem, please call the Property Owner immediately. We will make
a reasonable effort to have any necessary repairs made as soon as possible.” Id. at 2. Plaintiff
testified that her daughter rented the property for use by family members and friends. Pl. Dep.
14-17. Plaintiff went to the home on July 2, 2011, with her daughter, son-in-law, and
granddaughter. Id. at 16-17. Plaintiff testified that she was invited to join the family to help with
babysitting her granddaughter and did not pay any portion of the rent. Id. at 18.
On the morning of July 5, 2011, at approximately 9 a.m., plaintiff fell while going down
the stairs connecting the first and second floors of the house. Id. at 12, 18. The stairs have a wall
and handrail on the left side going down and are open on the right side. Id. at 23-24. Plaintiff
testified that she was holding onto the handrail with her left hand, and when she was about “two
or three” steps from the bottom, she “slipped” and turned around to try to grab the handrail. Id. at
32-33, 41. Plaintiff “wasn’t able to reach” the handrail, then she fell and hit her back against the
bottom step and hit her head against the wall. Id. at 33.
After plaintiff fell, family friends who were staying at the house came to help plaintiff
back up the stairs. Id. at 44. Plaintiff testified that she felt “severe pain” in her back and was not
able to lie down or sit down. Id. at 45-46. Either that evening or early the next morning, plaintiff
went to the emergency room of a nearby hospital. Id. at 45-46. After performing an MRI and x-

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rays, hospital staff told plaintiff that she had a “compression fracture of the spine” with a broken
piece of vertebrae and gave her pain medication. Id. at 47. After plaintiff returned to her home in
Brooklyn in August 2001, plaintiff’s primary care doctor referred her to Coney Island Hospital,
where multiple surgeons told her that surgery on her back could not be performed. Id. at 49-51.
Plaintiff also went to a physical therapist in Brooklyn “three or four times,” but he told her that
he was unable to help her. Id. at 52-53. Plaintiff continues to experience “bad pain” in her lower
back that is “almost constant.” Id. at 56-57. Plaintiff uses a cane, cannot stand for more than an
hour or walk more than two or three blocks without resting, cannot sleep on her side, and takes
painkillers when needed. Id. at 54-58. Plaintiff testified that she never experienced difficulty
walking or used a cane prior to the fall on the stairs. Id. at 26-27.
Defendant testified that the house was already constructed on the site when he purchased
the property in 2007, and no governmental or private entity conducted an inspection when he
purchased the home. Def. Dep. 8-9, 49. He stated that he has made no major renovations to the
house since he purchased it, and specifically that he has made no repairs or alterations to the
stairs or handrail. Id. at 9, 24, 44-45. Defendant testified that he never received any complaints
about the handrail or was aware of anyone having problems using the handrail prior to July 6,
2011. Id. at 50. He also stated that Olga Deykina had not made any complaints to him about
conditions on the property prior to July 6, 2011. Id. at 55-56. Defendant never went to the
property while Olga Deykina and her family were staying there and never met plaintiff. Id. at 59.
On May 29, 2012, plaintiff brought this suit pursuant to the court’s diversity jurisdiction.
Compl., Dkt. #1. Plaintiff alleges that defendant “did cause, permit and/or allow a dangerous,
hazardous, defective, unsafe and/or unfit condition to become, remain and/or exist at premises
located at 657 Old Stage Road, Albrightsville, Pennsylvania, more specifically, the interior

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staircase.” Id. ¶ 4. Plaintiff asserts that she slipped and fell on the staircase “due to lack of
handrails on either side and unevenly constructed steps” and sustained “severe, serious and
personal injuries” as a result. Id. ¶¶ 5, 8. Plaintiff seeks damages “in an amount that exceeds the
monetary jurisdiction of all lower Courts which otherwise might have had jurisdiction over this
matter.” Id. ¶ 11. Following discovery, including depositions of plaintiff and defendant and
expert reports by engineers for each side, defendant brought the instant motion for summary
judgment. Dkt. #32.

DISCUSSION
I.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The function of the court is not to resolve disputed factual issues but to determine
whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “While genuineness runs to whether disputed factual issues can reasonably be resolved in
favor of either party, materiality runs to whether the dispute matters, i.e., whether it concerns
facts that can affect the outcome under the applicable substantive law.” McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996))
(internal quotation marks and ellipses omitted).
In assessing whether summary judgment is appropriate, the court considers “the
pleadings, depositions, answers to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156
(2d Cir. 2011) (quoting In re Bennett Funding Grp., Inc., 336 F.3d 94, 99 (2d Cir. 2003)); accord

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Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party carries the burden of
proving that there is no genuine dispute respecting any material fact and “may obtain summary
judgment by showing that little or no evidence may be found in support of the nonmoving
party’s case.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223-24 (2d Cir.
1994). Once this burden is met, in order to avoid the entry of summary judgment, the nonmoving party “must come forward with specific facts showing that there is a genuine issue for
trial.” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998). In reviewing the record before it,
“the court is required to resolve all ambiguities and draw all permissible factual inferences in
favor of the party against whom summary judgment is sought.” McLee v. Chrysler Corp., 109
F.3d 130, 134 (2d Cir. 1997).

II.

Choice of Law
As an initial matter, the court must determine which state’s law governs plaintiff’s tort

claim. Plaintiff argues that the court should apply New York law, while defendant contends that
the court should apply Pennsylvania law.
Because jurisdiction in this action is based on diversity of citizenship, the court must
apply the choice of law rules of New York, the forum state. Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496-97 (1941); accord Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir.
1999). Under New York’s choice of law rules, the first question a court must address is “whether
there is an actual conflict between the laws of the jurisdictions involved.” In re Allstate Ins. Co.,
613 N.E.2d 936, 937 (N.Y. 1993). Where the laws at issue are not in actual conflict, the court
applies New York law. Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998) (“It is only when it
can be said that there is no actual conflict that New York will dispense with a choice of law

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analysis.”); Simon v. Philip Morris Inc., 124 F. Supp. 2d 46, 71 (E.D.N.Y. 2000) (“A court is
free to bypass the choice of law analysis and apply New York law in the absence of a material
conflict.”). If the relevant states’ laws are in conflict because they provide different substantive
rules, the court must proceed to the second step of the analysis and apply the law of the forum
that has “the greatest interest in the litigation.” Pescatore v. Pan Am. World Airways, Inc., 97
F.3d 1, 14 (2d Cir. 1996) (citing Neumeier v. Kuehner, 286 N.E.2d 454, 457 (N.Y. 1972)).
In this case, there is no actual conflict between Pennsylvania and New York law.
Plaintiff’s theory of tort liability rests on the contention that the staircase on defendant’s property
was structurally defective and that this defect caused plaintiff’s injury. The same substantive
standards govern this type of claim under either Pennsylvania or New York law.
Under the law of both states, an out-of-possession landlord is not liable for personal
injuries sustained on the property unless the landlord retains control over the leased premises. Ott
v. Unclaimed Freight Co., 577 A.2d 894, 895 (Pa. Super. Ct. 1990) (“As a general rule, a
landlord out of possession is not liable for injuries sustained by persons on his or her property
unless the landlord has retained the right to control the portion of the premises on which the
injury occurred.”) (quoting Oswald v. Hausman, 548 A.2d 594, 600 (Pa. Super. Ct. 1988));
Dominguez v. Food City Markets, Inc., 756 N.Y.S.2d 637, 639 (App. Div. 2003) (“An out-ofpossession landlord is not liable for personal injuries sustained on the premises unless the
landlord retains control of the property . . . .”). Courts in both states find that a landlord’s
obligation to maintain and repair the premises can establish control over the property. Nester v.
Anthony Indus., Inc., Civ. A. No. 90-0831, 1991 WL 9000, at *5 (E.D. Pa. Jan. 24, 1991)
(“Pennsylvania courts have held that lease provisions giving a landlord some responsibility over
repair or maintenance provide evidence of possession and control sufficient to submit the issue

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of control to a jury.”); Taylor v. Lastres, 847 N.Y.S.2d 139, 140 (App. Div. 2007) (“Control may
be evidenced by lease provisions making the landlord responsible for repairs or by a course of
conduct demonstrating that the landlord has assumed responsibility to maintain a particular
portion of the premises.”).
Where a landlord retains control over the leased premises, both states hold the landlord to
a duty to exercise reasonable care to protect people on the property from dangerous conditions.
Forgang v. Universal Gym Co., 621 A.2d 601, 603 (Pa. Super. Ct. 1993) (“[A] landlord who
retains control is only liable if, by the exercise of reasonable care, the landlord could have
discovered the condition and risk involved and made it safe.”); Tagle v. Jacob, 763 N.E.2d 107,
108-09 (N.Y. 2001) (citing Basso v. Miller, 352 N.E.2d 868 (N.Y. 1976)) (“[L]andowners owe
people on their property a duty of reasonable care under the circumstances to maintain their
property in a safe condition.”). Both states hold that a landlord can only be held liable if the
landlord had “actual or constructive notice” of the dangerous condition. Fitzpatrick v. Consol.
Rail Corp., Civ. a. No. 90-2938, 1991 WL 61114, at *4 (E.D. Pa. Apr. 16, 1991) (citing Smith v.
M.P.W. Realty Co., 225 A.2d 227, 229 (Pa. Super. Ct. 1967)); Taylor v. United States, 121 F.3d
86, 89-90 (2d Cir. 1997) (citing Gordon v. Am. Museum of Natural History, 492 N.E.2d 774
(N.Y. 1986)). As with any negligence claim, both states also require the plaintiff to prove that the
dangerous condition proximately caused his or her injury. Feld v. Merriam, 485 A.2d 742, 747
(Pa. 1984); McHale v. Westcott, 893 F. Supp. 143, 147 (N.D.N.Y. 1995).
In all material respects, therefore, both Pennsylvania and New York apply the same
substantive standards to analyze the type of tort claim raised in this action. Under either state’s
law, the resolution of this case will depend on: (1) whether defendant retained control over the
leased premises, such as by assuming responsibility for repairs; (2) whether a dangerous

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condition existed on the leased premises; (3) whether defendant had actual or constructive notice
of that dangerous condition; and (4) whether that dangerous condition proximately caused
plaintiff’s injuries.
Defendant’s attempts to demonstrate an actual conflict between Pennsylvania and New
York law are unavailing. Defendant argues that Pennsylvania law differs from New York law
because Pennsylvania courts hold that landlords have no duty to third parties who are injured on
the leased premises. In support of this contention, defendant relies on Pennsylvania cases stating
that, “[a]s a general rule, a landlord out of possession is not liable for injuries incurred by third
parties on the leased premises because the landlord has no duty to such persons.” Jones v. Levin,
940 A.2d 451, 454 (Pa. Super. Ct. 2007). However, it is not clear in this case whether plaintiff
was in fact a third party on the leased premises. Plaintiff’s daughter Olga Deykina signed the
rental agreement with defendant and specified that seven adults and three children would reside
at the property. Defendant testified that he knew Olga Deykina would be staying at the property
with other people and that he only requires the number of people, not all of their names, on the
lease. Def. Dep. 21-22. Even though plaintiff’s name does not appear on the lease, she was one
of the other adults that the parties contemplated in the rental agreement. Even if plaintiff were
considered a third party, however, Pennsylvania law recognizes several exceptions to the general
rule that landlords have no duty to third parties injured on the premises. Under one of those
exceptions, a landlord can be liable for injuries to third parties “if he has reserved control over a
defective portion of the demised premises.” Henze v. Texaco, Inc., 508 A.2d 1200, 1202 (Pa.
Super. Ct. 1986). Therefore, under Pennsylvania law, just as under New York law, a landlord
who retains control over the leased premises owes a duty to parties injured on the premises,
regardless of whether they are tenants or third parties. Defendant has failed to demonstrate a

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material difference between the substantive standards under Pennsylvania and New York law. 2
Accordingly, since there is no actual conflict between the New York and Pennsylvania
law governing this tort claim, there is no need to proceed to the second stage of the choice of law
analysis, and the court will apply New York law.

III.

Defendant’s Liability
Under New York law, to establish a negligence claim against a landowner for injuries

sustained on his or her property, the plaintiff must demonstrate “that the landowner controls the
property, that a defect exists, and that the defect causes plaintiff’s injuries.” McHale, 893 F.
Supp. at 147 (citing Turrisi v. Ponderosa, Inc., 578 N.Y.S.2d 724, 726 (App. Div. 1992)). On a
motion for summary judgment, the court must make “the threshold determination as to whether
the plaintiff, by introducing adequate evidence on each element, has made out a case sufficient in
law to support a favorable jury verdict.” Basso, 352 N.E.2d at 873. “Summary judgment is
difficult to obtain in negligence actions because whether conduct is ‘negligent’ is a factual
determination in all but the most extreme situations.” Ortiz v. Rosner, 817 F. Supp. 348, 350
(S.D.N.Y. 1993). However, “[t]hough courts are hesitant to grant summary judgment in

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None of the other Pennsylvania cases cited by defendant are in conflict with New York law. Defendant cites a
number of Pennsylvania cases for the proposition that out-of-possession landlords are not liable for injuries
sustained on the premises. However, defendant omits the exception to this rule, also cited in all of these cases: outof-possession landlords can be held liable where they reserve control over the leased premises. Therefore, all of
these cases simply state the same general rule and exception discussed above, which applies under both New York
and Pennsylvania law. See Cater v. Starbucks Corp., Civil Action No. 07-2660, 2010 WL 3195774, at *5 (E.D. Pa.
Aug. 10, 2010); Sentry Cas. Co. v. Spray Prods. Corp., Civil Action No. 06-cv-1664, 2008 WL 205229, at *2-*3
(E.D. Pa. Jan. 23, 2008); Deeter v. Dull Corp., 617 A.2d 336, 338-39 (Pa. Super. Ct. 1992); Pierce v. Phila. Hous.
Auth., 486 A.2d 1004, 1005 (Pa. Super. Ct. 1985). Defendant also relies on two cases where Pennsylvania courts
held that landlords had no duty to third parties injured on the property. However, in both of those cases,
responsibility for maintenance and repairs rested with the tenant. See Parquet v. Blahunka, 84 A.2d 187, 188 (Pa.
1951) (“Under the terms of the lease, the tenants were given exclusive possession and covenanted to make all
necessary repairs.”); Kobylinksi v. Hipps, 519 A.2d 488, 491 (Pa. Super. Ct. 1986) (“[T]here was no testimony to
the effect that Appellant, as landlord, covenanted to make any major repairs to the building throughout the leasehold
period.”). The results in those cases would not apply to a case where the landlord had responsibility for making
repairs and therefore retained control over the leased premises.

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negligence cases, the mere fact that a case involves a claim of negligence does not preclude a
granting of summary judgment.” Hood v. Regency Maritime Corp., No. 99 Civ. 10250(CSH),
2000 WL 1761000, at *2 (S.D.N.Y. Nov. 30, 2000) (internal quotation marks omitted).
A.

Defendant’s Control of Leased Premises

As discussed above, an out-of-possession landlord has no duty to people injured on the
property unless the landlord retains control over the leased premises. See, e.g., Dominguez, 756
N.Y.S.2d at 639. It is well settled that control of the property can be established by “lease
provisions making the landlord responsible for repairs.” Taylor, 847 N.Y.S.2d at 140; accord Lee
v. Second Ave. Vill. Partners, LLC, 953 N.Y.S.2d 259, 260 (App. Div. 2012). Here, the plain
language of the rental Agreement makes defendant responsible for repairs. The provision of the
agreement entitled “Repairs” instructs tenants to call defendant “immediately” if a problem
arises, and defendant promises to “make a reasonable effort to have any necessary repairs made
as soon as possible.” Wright Decl., Ex. E, at 2. Plaintiff has adduced sufficient evidence to
demonstrate that defendant retained control over the leased premises by taking responsibility for
repairs and maintenance. 3
B.

Existence of Defect

For the next element, plaintiff must establish the existence of a defective condition on the
premises. In plaintiff’s complaint, she asserts that the stairs at the property were defective
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Defendant asserts that plaintiff has failed to establish this element because “‘[r]eservation of control’ is a term of
art which applies in very specific circumstances not present here.” Def.’s Reply 3-4. In particular, defendant asserts
that the staircase at issue was accessible only to the tenants during the period of the lease, so defendant could not
have retained control over that area of the premises. Id. at 4. However, under the clear terms of the rental agreement,
if a maintenance problem arose with the staircase, the tenants would be expected to notify defendant, and defendant
would then be responsible for making the necessary repairs. New York law holds that a landlord’s obligation to
perform repairs and maintenance can establish control over the leased premises. The same rule would apply if the
court had accepted defendant’s contention that Pennsylvania law governs this action. See Sentry Cas. Co., 2008 WL
205229, at *3 (while landlords generally have no duty to third parties injured on the premises, courts have applied an
exception “in instances where a landlord has reserved, by way of maintenance obligations, control over the portion
of the premises at issue”); Farmers Export Co. v. Energy Terminals, Inc., 673 F. Supp. 715, 718 (E.D. Pa. 1987)
(language of lease agreement is “a significant factor in resolving the question of control,” and covenants requiring
landlord to repair or maintain premises are “strong indicia of control”).

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because the steps were “unevenly constructed” and lacked handrails on both sides. Compl. ¶ 5. 4
In support of his motion for summary judgment, defendant has submitted an expert report
from engineer Paul J. Angelides asserting that the stairs did not have a structural defect. Wright
Decl., Ex. G. According to Angelides’s inspection, the staircase is about 3 feet and 4.5 inches
wide and consists of eleven risers, or vertical steps, with a landing at the bottom and another step
down from the landing to the ground floor. Id. at ECF 2. The height of the risers ranges from
7.75 to 8.75 inches, while the tread, or depth, of each step ranges from 10.125 to 11.5 inches. Id.
at ECF 2-3. The stairs have a handrail on the left side going down that ends about 1 inch before
“the vertical projection of the riser on the last step,” while the right side of the stairs is open. Id.
at ECF 2. Angelides found that no state-enforced building code governed construction of singlefamily dwellings when the house was constructed in 1980, so he consulted a 1979 code from the
Council of American Building Officials as “representative of the industry standards which were
generally accepted at the time the building was constructed.” Id. at ECF 3. The 1979 code
required a maximum riser height of 8.25 inches and a minimum tread depth of 9 inches. Id. at
ECF 4. Angelides found that the treads and risers of the steps at the bottom of the staircase,
where plaintiff testified that she fell, conformed to the 1979 code. Id. The 1979 code required
handrails on “at least one side of stairways of three (3) or more risers,” but it did not include
“any requirements concerning handrail continuity.” Id. Angelides concluded that “the
termination of the handrail 1 inch short of the vertical projection of the riser on the last step is a

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Plaintiff also testified in her deposition that she thought she slipped because “there was too much varnish” on the
stairs and “[t]hey were too slippery.” Pl. Dep. at 35. To the extent that plaintiff seeks to assert that the slippery
surface of the stairs constituted a defective condition, this assertion has been refuted by the evidence. Defendant’s
expert measured the static coefficient of friction on the surface of the steps and found that it conformed with
“generally accepted industry standards,” so he concluded that “the stair walking surfaces cannot be considered
slippery.” Wright Decl., Ex. G, at ECF 4. Plaintiff’s expert report does not address this issue, so defendant’s expert
report is unrebutted on this point. Plaintiff’s brief opposing the summary judgment motion also gives no indication
that plaintiff intends to rely on the slippery surface of the stairs as an alleged defect. Therefore, I will not consider
the slippery surface of the stairs as a potential defective condition.

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de minimis condition that cannot be cited as a factor that contributed to the accident.” Id. The
1979 code also required guardrails on “[o]pen sides of stairs with a total rise of more than thirty
(30) inches above the floor.” Id. at ECF 4. Angelides stated that, even though the lack of a
guardrail on the open right side of the staircase violated this provision, this defect “is completely
irrelevant to the circumstances of the accident, as testified by the Plaintiff.” Id. Overall,
Angelides concluded “within a reasonable degree of engineering certainty that the stair does not
contain any defects that can be cited as factors which contributed to the reported slip and fall
accident.” Id. at ECF 5.
In rebuttal, plaintiff has submitted an expert report from engineer Scott Silberman.
Wright Decl., Ex. H. Silberman concluded that the stairs had a “dangerous condition” that
“promotes a slip type of fall,” because the steps had “narrow treads combined with high risers,”
while the handrail “stops prematurely and does not provide protection for any person using the
bottom of this stairway.” Id. at ECF 6-7. Specifically, according to Silberman’s measurements,
the riser height of the steps ranged from 7.25 to 8.62 inches, while the tread depth ranged from
8.37 to 11 inches. Id. at ECF 5. Silberman compared these measurements to 2000 and 2009
editions of the residential building code, which he considered “evidence of the good and
accepted practice for stairway construction in single family homes.” Id. at ECF 8. Silberman
found that the stairs did not comply because both the 2000 and 2009 codes required a maximum
riser height of 7.75 inches and a minimum tread depth of 10 inches. Id. Silberman also found that
the handrail on the left side of the stairs did not comply with the 2000 and 2009 building codes,
which both required handrails to be “continuous” for the full length of the stairs “from a point
directly above the top riser of a flight to a point directly above the lowest riser of the flight.” Id.
at ECF 8-9. Silberman concluded “with a reasonable degree of engineering certainty, that the

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combination of the above defects and violations definitely contributed to the unsafe condition
present at this location” and was “a significant and substantial contributing factor in Nelya
Deykina’s accident.” Id. at ECF 9.
Defendant argues that the court should not consider Silberman’s expert report. Defendant
contends that Silberman’s assertions are “speculative or unsupported by any evidentiary
foundation” because he relied on building codes that were not in effect when the house was built.
Def.’s Mem. of Law in Supp. of Mot. for Summ. J. (“Def’s Mem.”), Dkt. #32, Ex. 11, at 10-11.
Defendant also argues that expert testimony is inappropriate in this case because an assessment
of whether the stairs were defective “does not require professional or scientific knowledge or
skill that is outside the range of ordinary training or intelligence.” Id. at 12. Both of these
contentions are without merit. Silberman based his conclusions on his training and experience as
an engineer, and he has been qualified as an expert witness in numerous cases. See, e.g., Melini
v. 71st Lexington Corp., No. 07 Civ. 701(JCF), 2009 WL 413608, at *5 (S.D.N.Y. Feb. 13,
2009) (finding that Silberman’s “education and experience in engineering and building code
compliance give him an adequate background to offer his opinion in this matter”). Silberman’s
report did not suggest that the 2000 and 2009 building codes constituted enforceable standards in
this case; instead, he cited the codes as evidence of accepted engineering practices. To the extent
that defendant disagrees with Silberman’s reliance on these codes, “[v]igorous cross
examination, presentation of contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means” of rebutting his conclusions. Daubert v. Merrell Dow
Pharm., 509 U.S. 579, 596 (1993). Expert testimony is clearly relevant in this case to determine
whether the stairs had an engineering defect that caused plaintiff’s fall. Numerous courts have
considered expert testimony in cases where, as here, the plaintiffs have alleged a structural

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defect. See, e.g., Melini, 2009 WL 413608, at *5; Smith v. N.Y. Enter. Am., Inc., No. 06 Civ.
3082(PKL), 2008 WL 2810182, at *5 (S.D.N.Y. July 21, 2008); McHale, 893 F. Supp. at 148. At
the summary judgment stage, the court denies defendant’s request to preclude Silberman’s expert
report.
The reports of defendant’s and plaintiff’s experts, taken together, are sufficient to create a
triable issue of fact regarding whether the stairs have a defective condition. “[W]hether a
dangerous or defective condition exists on the property of another so as to create liability
depends on the peculiar facts and circumstances of each case and is generally a question of fact
for the jury.” Trincere v. Cnty. of Suffolk, 688 N.E.2d 489, 490 (N.Y. 1997) (internal quotation
marks omitted); accord Alig v. Parkway Parking of N.Y., Inc., 829 N.Y.S.2d 242, 244 (App.
Div. 2007). Here, the undisputed evidence shows that the stairs had no guardrail on the open
right side, while the handrail on the left side ended about one inch before the edge of the last
step. 5 The parties’ expert reports provide differing assessments of whether the handrail, riser
height, and tread depth of the stairs violate accepted engineering practices and constitute
defective conditions. Therefore, the record reflects a factual dispute regarding whether the stairs
have a structural defect, and it must be left to a jury to resolve the conflict between the two
expert reports. See Smith, 2008 WL 2810182, at *5 (finding declaration of plaintiff’s expert that
entranceway violated building code and was “improper and unsafe” sufficient to raise issue of
fact regarding existence of structural defect in stairs); McHale, 893 F. Supp. at 148 (finding
testimony from plaintiff’s structural engineer that stairs did not comply with building code
5

Defendant’s expert report provided the measurement of the handrail. While plaintiff’s expert report stated that the
handrail does not extend continuously for the full length of the stairway, plaintiff’s expert did not provide any
specific measurement of the distance from the end of the handrail to the edge of the last step. Therefore, I will treat
the measurement in defendant’s expert report as undisputed. In her testimony, plaintiff testified that the handrail
stopped “three or four steps” before the bottom of the staircase, Pl. Dep. 23-24, but her description from memory
conflicts with the measurements taken by defendant’s expert and with the photographs submitted by the parties,
Wright Decl., Ex. F.

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“sufficient to raise an issue of fact regarding the existence of a longstanding structural defect”).
C.

Defendant’s Actual or Constructive Notice of Defect

In addition to establishing the existence of a defective condition on the premises, plaintiff
must also show that defendant had actual or constructive notice of that defective condition.
Taylor, 121 F.3d at 89-90.
“A defendant has actual notice of a defect if he created the condition or received reports
of it such that he has actual knowledge of the defect’s existence.” McHale, 893 F. Supp. at 148.
Here, defendant did not create the condition, since he testified that the stairs already existed on
the property when he purchased the house in 2007 and that he did not alter them in any way.
Defendant also testified that he had not received any complaints about the handrail or reports of
people having difficulty using the handrail prior to plaintiff’s fall. On this record, there is no
basis to conclude that defendant had actual notice of a structural defect in the stairs. See Smith,
2008 WL 2810182, at *5 (finding landlord had no actual notice of structural defect of steps
where plaintiff never notified defendants about the condition and “no other testimony elicited or
evidence produced during discovery points to defendants having received any report or
complaint about the steps”); McHale, 893 F. Supp. at 148-49 (finding landlord had no actual
notice of structural defect of stairs where the stairs had not been modified by defendant, annual
inspections had not discovered a defect, no prior complaints about the stairs had been made, and
plaintiff had used the stairs frequently before the accident without incident); Mokszki v. Pratt,
786 N.Y.S.2d 222, 224 (App. Div. 2004) (finding no proof of actual notice of defect in handrail
where plaintiff adduced “no evidence that defendants ever received complaints regarding the
handrail or that, prior to this accident, plaintiff or others had difficulty negotiating the steps
because of the handrail’s condition”) (internal citations omitted).

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Even if defendant lacked actual notice of a structural defect in the stairs, however,
plaintiff could still recover if a jury concluded that defendant should have known about the
defect. “To 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 [the defendant] to discover and
remedy it.” Gordon, 492 N.E.2d at 775; accord McHale, 893 F. Supp. at 148. Here, there can be
no question that any alleged structural defect in the stairs existed for a sufficient length of time
prior to the accident, since defendant purchased the house in 2007 and made no changes to the
stairs prior to plaintiff’s fall in 2011. The element of constructive notice therefore turns on
whether the alleged structural defects were “visible and apparent.”
Defendant might be entitled to summary judgment on this element if the only structural
defects alleged were the narrow treads, high risers, or handrail on the left that ended one inch
before the edge of the last step. Courts have declined to impute constructive notice to defendants
where the allegedly defective conditions deviate from accepted practices by relatively small
dimensions that could only be detected through structural analysis. See McHale, 893 F. Supp. at
149 (finding defendant had no constructive notice of variance in riser heights and improper
height of hand railing because “the only way defendants could have discovered the defect was by
undertaking a structural analysis similar to the one [plaintiff’s expert] performed,” and “plaintiffs
did not allege any fact or occurrence that would have alerted defendants to the need for such
analysis”); Mokszki, 786 N.Y.S.2d at 224 (finding defendant had no constructive notice where
alleged defect was that handrail ended on second step from bottom).
However, plaintiff has also alleged another structural defect: the lack of any rail on the
open right side of the stairs. In plaintiff’s complaint, she asserts that the stairs were defective
because they lacked handrails on both sides. Defendant’s own expert report acknowledged that

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the lack of a guardrail on the open right side violated the building codes in existence when the
stairs were constructed. The lack of any guardrail altogether is clearly visible and apparent to any
observer and does not require any type of structural analysis to discover. Courts applying New
York law have repeatedly declined to grant summary judgment for defendants on the element of
constructive notice when plaintiffs allege this type of readily obvious structural defect. See
Melini, 2009 WL 413608, at *8 (denying summary judgment regarding constructive notice
where excessive slope of ramp was “extreme enough to create a material issue of fact as to
whether it was easily discoverable by the defendants”); Smith, 2008 WL 2810182, at *6 (finding
triable issue of fact regarding constructive notice where door of store opened directly onto step
down with no landing because “a jury could reasonably find that the Owners had notice of the
‘plainly visible’ defective stairs without the need for any structural analysis”); Carter v. State,
990 N.Y.S.2d 333, 335 (App. Div. 2014) (finding triable issue of fact regarding constructive
notice where handrail did not start until third step down); Ennis-Short v. Ostapeck, 890 N.Y.S.2d
215, 216 (App. Div. 2009) (finding triable issue of fact regarding constructive notice where
“[p]ictures and measurements of the staircase show that there was no handrail on the outside
wall, the handrail on the inside wall was not continuous, the break in the handrail occurred at the
wedge-shaped portion of the staircase [where plaintiff fell], and the beginning of the second
railing was too low to be usable by someone walking down the stairs”); Palmer v. 165 E. 72nd
Apartment Corp., 819 N.Y.S.2d 105, 105-06 (App. Div. 2006) (denying summary judgment
where plaintiff’s deposition testimony “demonstrated that the segment of the staircase where the
plaintiff fell did not have a handrail”).
Accordingly, viewing the record in the light most favorable to plaintiff, the evidence
raises a triable issue of fact regarding whether defendant had constructive notice of a structural

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defect in the stairs. The fact that the handrail on the left side ends one inch before the edge of the
final step, taken alone, might not be sufficient to survive summary judgment. However, a jury
could find that defendant should have been on notice that the one-inch gap in the handrail on the
left, combined with the readily apparent lack of any guardrail on the right, created a dangerous
condition on the stairs. 6 Therefore, defendant is not entitled to summary judgment on the issue of
constructive notice.
D.

Proximate Cause

Finally, plaintiff must establish that the alleged structural defects in the stairs proximately
caused her injuries. To demonstrate proximate cause, a plaintiff must show that “a fall was a
natural and probable consequence of the conditions present on the stairs.” Gordon, 492 N.E.2d at
775. “Although proximate cause can be inferred from circumstances underlying the accident and
need not be demonstrated by direct evidence, mere speculation as to the cause of injury is
insufficient.” Ascher v. Target Corp., 522 F. Supp. 2d 452, 456 (E.D.N.Y. 2007) (collecting
cases); accord Smith, 2008 WL 2810182, at *6; Ellis v. Cnty. of Albany, 613 N.Y.S.2d 983, 98485 (App. Div. 1994). “In a trip and fall case, a plaintiff’s inability to identify the cause of his or
her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be
required to base a finding of proximate cause upon nothing more than speculation.” Louman v.
Town of Greenburgh, 876 N.Y.S.2d 112, 114 (App. Div. 2009) (internal quotation marks,
citations, and alterations omitted).
Defendant argues that plaintiff cannot establish proximate cause because she could not
6

In his reply brief, defendant asserts that it is somehow inconsistent for plaintiff to argue, on the one hand, that
expert testimony is necessary to determine whether the stairs had a structural defect and, on the other hand, that
defendant, a lay person, had constructive knowledge of the defect’s existence. Def.’s Reply 1, 4. In fact, though,
there is nothing inconsistent about this position. New York courts find a triable issue of fact regarding constructive
notice where a defect would be visible and apparent to a layperson. However, expert testimony is clearly still
relevant to resolve the ultimate questions of liability: whether a defect exists and whether it proximately caused the
plaintiff’s injuries.

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explain in her testimony why she fell on the stairs, so any determination regarding causation
would be speculative. Defendant points to a portion of plaintiff’s deposition testimony in which
she stated that she thought “the reason” she fell was that “there was too much varnish” on the
stairs and “[t]hey were too slippery.” Pl. Dep. at 35. As defendant argues, plaintiff did not
attribute her fall to any structural defects in the stairs. Def.’s Mem. 14-16. Defendant also argues
that plaintiff testified that she tripped on the second or third step from the bottom, and the record
shows the steps did have a handrail on the left side at that part. Therefore, defendant asserts, it
would be “speculation or guesswork” to assert that plaintiff could have stopped her fall if the
handrail had extended farther. Id. at 18.
While I find it a close question, I am obligated to draw all reasonable inferences in favor
of plaintiff, and I conclude that the record reflects a triable issue of fact on the issue of proximate
cause. Even though plaintiff stated in her testimony that she thought the slippery surface of the
steps caused her to fall, she also testified that she tried to reach for the handrail to stop her fall
and could not reach it. When viewed in its entirety, plaintiff’s deposition testimony is sufficient
to raise the issue of whether the length of the handrail on the left side, taken together with the
absence of any guardrail on the open right side, proximately caused her fall. To be sure, plaintiff
did not mention the lack of a guardrail on the right side in her testimony, and her opposition brief
to defendant’s summary judgment motion asserts that the lack of a continuous handrail on the
left side proximately caused her fall. However, based on plaintiff’s testimony that she tried
unsuccessfully to stop her fall using the handrail on the left, a jury could reasonably infer that
plaintiff would have also tried to use a handrail or guardrail on the right side if one had existed.
New York courts have frequently held that where, as here, a plaintiff testified that she
attempted to reach for a handrail in order to stop her fall, she has created a triable issue of fact

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regarding whether a defective or absent handrail proximately caused her injuries. See Antonia v.
Srour, 893 N.Y.S.2d 186, 187 (App. Div. 2010) (“Even if the plaintiff’s fall was precipitated by
a misstep, given her testimony that she reached out to try to stop her fall, there is an issue of fact
as to whether the absence of a handrail was a proximate cause of her injury.”) (collecting cases);
accord Carter, 990 N.Y.S.2d at 336; Palmer, 819 N.Y.S.2d at 106; Asaro v. Montalvo, 812
N.Y.S.2d 558, 559 (App. Div. 2006); Viscusi v. Fenner, 781 N.Y.S.2d 121, 122 (App. Div.
2004); Cruz v. Lormet Hous. Dev. Fund Corp., 776 N.Y.S.2d 842, 843 (App. Div. 2004). 7 Here,
too, I find that plaintiff’s testimony regarding her attempt to grab the handrail is sufficient to
create a triable issue of fact regarding whether the length of the handrail on the left side and the
absence of a guardrail on the open right side proximately caused her injuries.

7

Defendant cites a number of cases where New York courts found that plaintiffs’ allegations that defective handrails
caused their falls were too speculative to establish proximate cause. See, e.g., Ghany v. Hossain, 884 N.Y.S.2d 125,
125 (App. Div. 2009) (“Even if the stairway and handrail were defective, as the expert opined, the Supreme Court
properly determined that his conclusion linking the alleged defects to the decedent’s fall were purely speculative.”);
Tutunjian v. Cove Landing on Sound Homeowners Ass’n, 833 N.Y.S.2d 110, 111 (App. Div. 2007) (“[T]he plaintiff
failed to raise a triable issue of fact as to whether the absence of a second handrail was a proximate cause of the
accident.”). However, proximate cause is necessarily a fact-specific determination, and defendant has failed to show
that the facts of any of those cases are comparable to this one. Instead, I find this case analogous to the numerous
cases where New York courts have held that a plaintiff’s attempt to use a handrail creates a triable issue of fact
regarding whether the lack of a handrail proximately caused the injury.

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CONCLUSION
For the foregoing reasons, the record reflects triable issues of fact regarding whether
defendant retained control over the leased premises, whether the staircase in the house had a
structural defect, whether defendant had constructive notice of the defective condition, and
whether the defective condition caused plaintiff’s injuries. Accordingly, plaintiff has adduced
sufficient evidence to proceed to a jury on each of the elements of her negligence claim, and
defendant’s motion for summary judgment is denied.
SO ORDERED.

__/s/___________________________
Allyne R. Ross
United States District Judge
Dated:

September 15, 2014
Brooklyn, New York

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