Goodnough v. Clark et al
DECISION AND ORDER granting # 31 Defendants' Motion for Summary Judgment; Plaintiff's complaint is dismissed in its entirety. Signed by Chief Judge Glenn T. Suddaby on 9/27/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JUDITH CLARK; and THOMAS CLARK,
VILLARI, BRANDES & GIANNONE, P.C.
Counsel for Plaintiff
8 Tower Bridge, Suite 400
161 Washington Street
Conshohocken, PA 19428
JOSEPH P. BRADICA, ESQ.
PETER M. VILLARI, ESQ.
O’CONNELL & ARONOWITZ, P.C.
Co-Counsel for Plaintiff
54 State Street, 9th Floor
Albany, NY 12207
PAMELA A. NICHOLS, ESQ.
AMBER L. WRIGHT, ESQ.
BARCLAY DAMON, LLP
Counsel for Defendants
243 Lake Street
Elmira, NY 14901
MATTHEW J. ROSNO, ESQ.
BRYAN J. MAGGS, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this personal injury action filed by Margaret Goodnough
(“Plaintiff”) against Judith Clark and Thomas Clark (“Defendants”), is Defendants’ motion for
summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 31.) For the reasons set forth
below, Defendants’ motion is granted.
Generally, liberally construed, Plaintiff’s Complaint alleges as follows. Defendants were
the owners of real property located at 124 Hillside Terrace, in the Town of Endwell, County of
Broome and State of New York (“subject premises”). (Dkt. No. 1, ¶¶ 9-11 [Pl.’s Compl.].) At
all times relevant to this lawsuit, Defendants were responsible for the safety and maintenance of
the property. (Id., ¶¶ 12-13.) On August 17, 2012, at approximately 11:00 a.m., Plaintiff was an
invitee of Defendants at the subject premises. (Id., ¶ 16.) On this date and time, Plaintiff was
walking down a poorly lit interior staircase that led to the basement of the subject premises when
she tripped and fell as a result of coming into contact with a dangerous and/or defective
condition, i.e., an uneven step, located near the bottom of the interior staircase. (Id., ¶ 17.)
Defendants were, or reasonably should have been, aware of the dangerous and/or defective
condition of the interior staircase and they breached their duty to maintain the subject premises
in a reasonably safe condition. (Id., ¶¶ 18-19.) As a direct and proximate result of Defendants’
negligence, Plaintiff sustained serious and/or permanent bodily injuries as well as mental and
emotional distress. (Id., ¶ 21.) Based on these allegations, Plaintiff asserts a claim of negligence
against Defendants. (Id., ¶¶ 8-27.)
Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported with accurate
record citations by Defendants in their Statement of Material Facts (“Rule 7.1 Statement”) and
expressly admitted by Plaintiff in her response thereto (“Rule 7.1 Response”). (Compare Dkt.
No. 31, Attach. 5 [Defs.’ Rule 7.1 Statement] with Dkt. No. 39, Attach. 3 [Pl.’s Rule 7.1
The action arises out of an alleged incident on August 17, 2012, at 124 Hillside
Terrace, Endwell, New York, which is owned by Defendants. Defendant Judith Clark passed
away after the filing of the Complaint.
Plaintiff claims that Defendants are negligent for failing to maintain the subject
premises, specifically for failing to maintain a staircase between the first floor and basement.
Plaintiff testified at an examination before trial in this matter. At her deposition
Plaintiff testified as follows:
Plaintiff had been friends with Defendants for a very long time and was
helping Mrs. Clark, who was suffering from Parkinson’s disease, with
laundry at the time of the accident.
Plaintiff had never seen anyone else fall down the basement stairs and
never complained to Defendants about the basement stairs.
Other than observing that the basement stairs were old, Plaintiff did not
recognize anything wrong with the stairs during the times that she had
previously traversed them.
Plaintiff had heard that Mrs. Clark had previously fallen while traversing
the basement stairs but did not know the circumstances of her fall.
Similarly, Mr. Clark told Plaintiff that he had nearly fallen on the
basement stairs a “number of times.” Plaintiff was not aware of anyone
else having fallen on the basement stairs.
As Plaintiff was descending the basement stairs on the date of the incident,
she was carrying a few shirts but was holding the railing; she stepped on
the next to last step, felt that her foot was not supported because the step
felt uneven or tilted/sloped, lost her balance, and fell forward.
Plaintiff felt that the step was uneven; her foot was fully on the step but
she felt that the step was uneven on the lateral part of her foot.
As Plaintiff was descending the basement stairs on the date of the incident,
she did not observe anything wrong with them.1
(Compare Dkt. No. 31, Attach. 5, ¶ 8 [Defs.’ Rule 7.1 Statement, asserting
above-stated fact and citing record evidence establishing above-stated fact] with Dkt. No. 39,
Attach. 3, ¶ 8 [Pl.’s Rule 7.1 Response, denying above-stated fact but failing to cite record
evidence actually supporting denial of above-stated fact].)
Defendant Thomas Clark testified at an examination before trial in this matter. At
his deposition, Defendant Thomas Clark testified as follows:
Mr. Clark almost fell on the basement stairs at some point in time after he
tripped on some canned goods Mrs. Clark had left on the stairs.
Other than the time that Mr. Clark almost fell on the basement stairs and
the time that Mrs. Clark fell, Mr. Clark is not aware of anyone else having
fallen on the basement stairs before Plaintiff’s accident.
Since the time of Plaintiff’s accident, Mr. Clark has traversed the
basement stairs “many times without incident” and inspected the stairs and
did not see any problem with them.
Mr. Clark never made any alterations or changes to the basement stairs in
the approximately 50 years he has owned the home.
Mr. Clark identified two photographs of the basement stairs and confirmed
that they accurately depicted the basement stairs at the time of the
Photographs depicting the condition of the basement stairs were identified and
confirmed as accurate in the respective depositions of the parties.
Defendant Thomas Clark has owned the subject premises for more than 45 years
and did not construct the basement stairs. Mr. Clark also regularly cleaned, visually inspected,
and used the basements stairs before Plaintiff’s accident occurred. During the month preceding
Plaintiff’s accident, Mr. Clark used and visually inspected the basement stairs on at least one
(Compare Dkt. No. 31, Attach. 5, ¶ 5 [Defs.’ Rule 7.1 Statement, asserting
above-stated fact and citing record evidence establishing above-stated fact] with Dkt. No. 39,
Attach. 3, ¶ 5 [Pl.’s Rule 7.1 Response, denying above-stated fact but failing to cite record
evidence actually supporting denial of above-stated fact.].) Specifically, Defendant Clark’s
declaration, which supports the above-stated facts, relates to the time period before Plaintiff’s
accident. Conversely, the record evidence cited by Plaintiff in support of her contention that
Defendant Clark did not inspect the stairs relates to the time period after Plaintiff’s fall.
According to Defendant Thomas Clark, there were no other accidents on the
basement stairs before Plaintiff’s accident other than (1) an incident when he tripped on some
canned goods and almost fell, and (2) an incident when Defendant Judith Clark fell.
Plaintiff had previously used the basement stairs several times before the time of
Defendants’ engineering expert, Thomas Fraser, PE, inspected the subject
premises and concluded, to a reasonable degree of engineering certainty, that the basement stairs
were in sound condition and good repair at the time of Plaintiff’s accident.
The Parties’ Briefing on Defendants’ Motion
Defendants’ Memorandum of Law
Generally, in their memorandum of law, Defendants assert two arguments. (Dkt. No. 31,
Attach. 4 [Defs.’ Mem. of Law].)
First, Defendants argue that Defendant Thomas Clark did not (1) create the allegedly
dangerous condition that caused Plaintiff’s accident, (2) alter or change the basements stairs, or
(3) have actual notice of any alleged dangerous condition. (Id. at 11.)3 Specifically, Defendants
argue that the basement stairs were present in the home when Defendant Thomas Clark
purchased the subject premises more than 45 years ago. (Id.) In addition, Defendants argue that
the stairs were in the same condition as when Mr. Clark purchased the home and that he had not
received any complaints about the condition of the stairs before Plaintiff’s accident. (Id. at 12.)
Second, and finally, Defendants argue that Defendant Thomas Clark did not have
constructive notice of a visible and apparent defect that existed for a sufficient length of time
Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the parties’ respective motion papers.
before Plaintiff’s accident that would have allowed Mr. Clark a sufficient opportunity to discover
and fix it. (Id.) Specifically, Defendants argue that Mr. Clark did not have constructive notice
of any alleged defect for the following seven reasons: (1) only two dissimilar accidents occurred
on the basement steps during the time that Mr. Clark has owned the subject premises; (2) Mr.
Clark never received any complaints about the basement stairs; (3) Mr. Clark regularly used and
inspected the basement stairs and did not observe, feel, or notice any hazardous or defective
conditions; (4) Plaintiff had used the basement stairs several times before her accident without
incident and had never complained about any hazardous or defective condition; (5) Plaintiff did
not observe or notice anything wrong with the basement stairs as she was descending them
before her accident; (6) the photographs of the basement stairs do not reveal a visible or apparent
defect or hazardous condition; and (7) Defendants’ engineering expert has opined that the
basement stairs were in good condition. (Id. at 15-16.)
Plaintiff’s Opposition Memorandum of Law
Generally, in opposition to Defendants’ motion, Plaintiff asserts the following four
arguments. (Dkt. No. 39, Attach. 6 [Pl.’s Opp’n Mem. of Law].)
First, Plaintiff argues that there is a genuine dispute of material fact regarding whether
Defendants had actual notice of the unsafe, dangerous, and defective condition of the basement
stairs for the following three reasons: (1) Defendant Thomas Clark admitted that Mrs. Clark
previously fell on the “next to the last step,” which is the exact same step where Plaintiff’s fall
occurred; (2) Mr. Clark warned Plaintiff to “hold on” while using the basement stairs; and (3)
Mr. Clark prohibited non-family members from using the basement stairs. (Id. at 13-14.)
Second, Plaintiff argues that Defendant Thomas Clark cannot rely on statements made by
his wife describing how her fall occurred. (Id. at 15.) Specifically, Plaintiff argues that Mr.
Clark was not present during his wife’s fall and his deposition testimony recounting his wife’s
statements regarding her fall constitutes impermissible hearsay. (Id.) However, Plaintiff argues
that she can rely on statements made to her by Mrs. Clark indicating that Mrs. Clark’s fall
occurred in the same manner as Plaintiff’s because it is an admission of a party opponent and
therefore admissible under Fed. R. Evid. 801(d)(2)(A). (Id.)
Third, Plaintiff argues that the unsafe, dangerous, and defective condition of the
basement stairs existed for a sufficient length of time to allow Defendants an opportunity to
remedy it. (Id. at 16.) Specifically, Plaintiff argues that (a) Defendants owned the property for
more than 45 years and made no changes to the basement stairs, (b) Mrs. Clark’s fall occurred
several years before Plaintiff’s accident, and (c) Defendant Thomas Clark inspected the
basement stairs for any hazardous, defective, or dangerous condition on a regular basis. (Id. at
With respect to whether a dangerous and defective condition existed, Plaintiff argues that
the basement stairs lacked a handrail on the open side of the staircase, which is clearly visible
from photographs. (Id. at 17.) Plaintiff argues that New York State courts have routinely held
that a missing handrail constitutes a visible and apparent defect for purposes of constructive
notice. (Id.) Furthermore, Plaintiff argues that her expert found the basements stairs to be
dangerous and defective for the following four reasons: (1) the unsafe width of the stepping
surface; (2) the right to left slope of each tread; (3) the worn and broken-off nosings of the
treads; and (4) the failure to provide proper handrails. (Id. at 19.)
With respect to whether Defendants had knowledge of the dangerous and defective
condition, Plaintiff argues that Defendant Thomas Clark has admitted that he visually inspected
the basement stairs in the “days, weeks, months, and years” before her fall, including “at least”
one inspection in the month before the subject accident occurred. (Id. at 18.) Furthermore, Mr.
Clark “used and traversed” the basement stairs “at least every other day, if not every day.” (Id.)
Mr. Clark also claims to have “observed the condition of” and “visually inspected” the basement
stairs “at least weekly if not every day” for a “hazardous, defective or dangerous condition”
before his trip to Minnesota. (Id.) Based on Mr. Clark’s statements, Plaintiff argues that Mr.
Clark went well beyond the reasonable duty to inspect for, and be aware of, unsafe and
dangerous conditions that is required of an average property owner and that he assumed a
heightened responsibility to conduct an inspection of the basement stairs on a frequent basis for
such conditions. (Id.) Through these frequent inspections, Plaintiff argues that Mr. Clark was
likely very familiar with the staircase and should have discovered its dangerous and defective
condition by comparing and contrasting its characteristics with other staircases he regularly used.
(Id. at 19-20.)
With respect to whether the defective conditions were latent, Plaintiff argues that
Defendants have not argued that the conditions were latent as opposed to apparent and whether
they could not have been discovered by a reasonable inspection. (Id. at 20-21.)
Fourth, and finally, Plaintiff argues that certain portions of Defendant Thomas Clark’s
declaration are inconsistent with his prior deposition testimony and, therefore, should be
disregarded. (Id. at 21.) Specifically, Plaintiff argues that Mr. Clark states in his declaration that
he regularly inspected the basement stairs, which directly contradicts his deposition testimony
that he has been “up and down [the basement stairs] many, many times and without incident and
think nothing about it.” (Id. 21-22.)
Defendants’ Reply Memorandum of Law
In reply to Plaintiff’s opposition memorandum of law, Defendants make the following
four arguments. (Dkt. No. 41, Attach. 1 [Defs.’ Reply Mem. of Law].)
First, Defendants argue that Plaintiff has failed to create a genuine dispute of material
fact regarding their alleged failure to maintain the basement stairs in a reasonably safe condition.
(Id. at 7.) Specifically, Defendants argue that, although Plaintiff claims that it was a violation of
the building code for the staircase not to have a handrail on its open side, Plaintiff’s expert has
admitted that the building code does not apply to their house because the house pre-dates the
building code. (Id.)
In addition, Defendants argue that Plaintiff has failed to demonstrate that the lack of a
handrail on the open side of the staircase was the proximate cause of the accident. (Id. at 8.)
Rather, Defendants argue that Plaintiff has offered only speculation that a handrail on the open
side of the staircase may have helped her navigate down the stairs, instead of showing that it
would have prevented the accident. (Id. at 8-9.) Defendants argue that Plaintiff’s speculation is
even more questionable in light of her deposition testimony that she was (a) holding the handrail
on the right side of the staircase with her right hand, and (b) carrying shirts in her left hand at the
time of the accident. (Id. at 9.)
Second, Defendants argue that Defendant Thomas Clark’s declaration does not directly
contradict his prior deposition testimony because he testified that he regularly used the stairs
without incident and that he looked at the stairs and did not see any problems. (Id. at 10-11.)
Defendants argue that this is consistent with the statements made in Mr. Clark’s declaration
where he explained that he visually inspected the stairs while using them. (Id. at 11.)
Conversely, Defendants argue that Plaintiff’s declaration contradicts her prior deposition
testimony regarding how the accident occurred and states, for the first time, that the lack of a
handrail on the open side of the staircase may have contributed to her accident. (Id.)
Third, Defendants argue that statements made by Defendant Judith Clark to Defendant
Thomas Clark describing how her fall occurred do not constitute impermissible hearsay because
those statements are not being offered for their truth but, instead, as proof of the lack of notice of
a dangerous or hazardous condition. (Id.) In any event, Defendants argue, even if these
statements are found to be impermissible hearsay, similar statements regarding Defendant Judith
Clark’s accident are also hearsay and cannot be relied on because they are the only proof offered
to establish that Defendants had notice of a defective or dangerous condition. (Id. at 11-12
[citing Savage v. Anderson’s Frozen Custard, Inc., 100 A.D.3d 1563, 1564 (N.Y. App. Div. 4th
Similarly, Defendants argue that Plaintiff attempts to rely on hearsay statements allegedly
made to her by Defendant Thomas Clark advising her to hold onto the railing because he had
nearly fallen on the steps in the past. (Id. at 12.) Defendants argue that these statements are
hearsay and, in any event, are insufficient to constitute notice because courts have held that a
general awareness that a dangerous condition may be present is legally insufficient to charge a
defendant with constructive notice of the specific condition that caused a plaintiff’s injuries.
(Id.) Furthermore, Defendants argue that Defendant Thomas Clark’s deposition testimony that
he prohibited non-family members from using the basement stairs after Plaintiff’s accident does
not establish that he had notice of a dangerous condition before the accident occurred. (Id.)
Fourth, and finally, Defendants argue that Plaintiff has failed to demonstrate that they
had constructive notice of a defect in the basement stairs and/or that the challenged defects (i.e.,
the widths and heights of the steps) were visible and apparent. (Id. at 13.) Furthermore,
Defendants argue that there is no requirement that they prove that the alleged defects were latent
in order to dispute whether they had constructive notice. (Id.)
LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]
evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).4 As for the materiality requirement, a dispute of
fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, "[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
As a result, "[c]onclusory allegations, conjecture and speculation . . . are
insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998) [citation omitted]. As the Supreme Court has explained, "[The non-movant] must do more
than simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
fails to respond to a motion for summary judgment, a district court has no duty to perform an
independent review of the record to find proof of a factual dispute.5 Of course, when a nonmovant fails to respond to a motion for summary judgment, "[t]he fact that there has been no
[such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically."
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must
assure itself that, based on the undisputed material facts, the law indeed warrants judgment for
the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Group, Inc., 140 F.
Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the nonmovant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has failed to properly respond to that
Similarly, in this District, where a non-movant has failed to respond to a movant’s
properly filed and facially meritorious memorandum of law, the non-movant is deemed to have
Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby,
J.) (citing cases).
Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the
movant's factual assertions in matching numbered paragraphs, and supports any denials with a
specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
"consented" to the legal arguments contained in that memorandum of law under Local Rule
7.1(b)(3).7 Stated another way, when a non-movant fails to oppose a legal argument asserted by
a movant, the movant may succeed on the argument by showing that the argument possess facial
merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R.
7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determined that the
moving party has met its burden to demonstrate entitlement to the relief requested therein . . . .”);
Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009)
(Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at *2 &
n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
“Negligence is governed by New York state law, which requires a plaintiff to establish
(1) that the defendant owed the plaintiff a cognizable duty of care; (2) that the defendant
breached that duty, and (3) that the plaintiff suffered proximately caused damages.” Feder v.
Target Stores, 15 F. Supp. 3d 253, 256 (E.D.N.Y. 2014). “In a slip-and-fall case, a plaintiff must
demonstrate that the defendant created the condition that caused the accident, or that the
defendant had actual or constructive notice of the condition.” Feder, 15 F. Supp. 3d at 256.
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b]; Devito v. Smithkline Beecham Corp., 02-CV0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
The parties do not dispute that New York state law governs Plaintiff’s substantive
negligence claim. However, federal law applies to procedural aspects of the claim. Hanna v.
Plumer, 380 U.S. 460, 465 (1965). The moving party’s burden of proof on a summary judgment
motion is procedural, and is therefore governed by federal law. See Hughes v. U.S., 12-CV5109, 2014 WL 929837, at *4 (S.D.N.Y. Mar. 7, 2014) (applying the federal burden of proof
standard on a motion for summary judgment, explaining that “[e]ven though the substantive
claims are governed under New York law, the procedural issues are determined under the federal
Whether Defendants Created a Dangerous Condition
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated below.
“To establish that a defendant created a dangerous condition or defect, a plaintiff must
point to some affirmative act on the part of the defendant.” Vasquez v. U.S., 14-CV-1510, 2016
WL 315879, at *7 (S.D.N.Y. Jan. 15. 2016) (internal quotation marks omitted). “Although
circumstantial evidence may be sufficient to defeat a motion for summary judgment if it creates
an inference that Defendant created the condition through affirmative acts, [a] plaintiff cannot
avoid summary judgment through mere speculation and conjecture regarding how a defendant
may have created a particular hazard.” Decker, 2017 WL 568761, at *5 (internal quotation
Here, there is no evidence that Defendants created the alleged defective or dangerous
condition, and Plaintiff has not pointed to any circumstantial evidence that would create a
reasonable inference that Defendants created the condition. Specifically, it is undisputed that the
basement stairs were present in the home when Defendants purchased it approximately 45 years
ago and Defendant Thomas Clark did not alter them in any way. See McHale v. Westcott, 893 F.
Supp. 143, 148-49 (N.D.N.Y. 1995) (Pooler, J.) (finding that “plaintiffs failed to produce any
evidence tending to show that defendants created the defect” where there was “no dispute that
the stairs are about 40 years old and unmodified by either defendant”); Deykina v. Chattin, 12CV-2678, 2014 WL 4628692, at *7 (E.D.N.Y. Sept. 15, 2014) (“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.”). Because there is no evidence that
Defendants created the condition, Plaintiff must demonstrate either actual or constructive notice
to establish her claim.
Whether Defendants Had Actual Notice of a Dangerous Condition
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated by Defendants in their memoranda of law. (Dkt. No. 31, Attach. 4, at 15
[Defs.’ Mem. of Law]; Dkt. No. 41, Attach. 1, at 11-14 [Defs.’ Reply Mem. of Law].) To those
reasons, the Court adds the following analysis.
“Actual notice requires that a defendant receive complaints or similarly be alerted to the
existence of the dangerous condition.” Nussbaum v. Metro-N. Commuter R.R., 603 F. App’x 10,
12 (2d Cir. 2015). In the present case, the parties argue that certain out-of-court statements made
by Defendant Judith Clark regarding the circumstances surrounding her accident on the
basement stairs constitute impermissible hearsay and, therefore, should not be considered in
determining whether Defendants had prior notice of a dangerous condition. As an initial matter,
Defendants cite New York state case law exclusively in support of their position that statements
made to Defendant Thomas Clark by Defendant Judith Clark should not be excluded but that
statements made to Plaintiff by Defendant Judith Clark should be excluded. (Dkt. No. 41,
Attach. 1, at 11-12 [Defs.’ Reply Mem. of Law].) However, “[m]ost evidentiary rules are
procedural in nature, and the Federal Rules of Evidence ordinarily govern in diversity cases.”
Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (further noting, however, that
“state evidence rules that are ‘intimately bound up’ with the state’s substantive decision making
must be given full effect by federal courts sitting in diversity”) (internal quotation marks
Here, the Court will consider the statements allegedly made to Mr. Clark by Mrs. Clark
regarding her accident to the extent that they prove Mr. Clark’s knowledge (i.e., whether he
received prior complaints of the dangerous condition) and/or notice of the alleged dangerous
condition of the basement stairs. See Arista Records LLC v. Lime Grp. LLC, 784 F. Supp. 2d
398, 421 (S.D.N.Y. 2011) (“Out-of-court statements are also not considered hearsay if used to
prove notice or knowledge.”). According to Mr. Clark’s deposition testimony, Mr. Clark learned
that Mrs. Clark fell on the basements stairs after she misjudged the steps. (Dkt. No. 31, Attach.
1, at 69:14-15 [Clark Dep.].)8 Specifically, Mrs. Clark, while standing on the last step of the
stairwell, believed she was already standing on the basement floor and proceeded to walk
forward, which caused her to fall off the stairwell. (Id. at 69:16-70:5, 83:4-6.) Under this
version of Mrs. Clark’s accident, Defendants cannot be charged with knowledge and/or notice of
a dangerous or defective condition in the second-to-last step because it was Mrs. Clark’s
Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the deposition transcript.
misjudgment of the last step, and not a dangerous or defective condition of the second-to-last
step, that caused her to fall.9 Similarly, although Mr. Clark almost fell on the stairs, this was due
to Mr. Clark tripping on canned goods left on the stairs by his wife and not due to a dangerous or
defective condition. (Id. at 70:13-23.)
With respect to the alleged statements Mrs. Clark made to Plaintiff, the Court agrees with
Plaintiff that these statements are admissible as a party-opponent admission pursuant to Fed. R.
Evid. 801(d)(2)(A). However, after carefully reviewing Plaintiff’s deposition testimony
regarding Mrs. Clark’s statements, the Court finds that they are insufficient to create a genuine
dispute of material fact regarding whether Defendants had actual notice of a dangerous or
defective condition. Specifically, Plaintiff testified that she had two separate conversations with
Mrs. Clark regarding Plaintiff’s accident. (Dkt. No. 39, Attach. 1, at 32:11-16 [Pl.’s Dep.].)
According to Plaintiff, the first conversation took place after she fell and walked back up the
stairs where she encountered Mrs. Clark. (Id. at 33:1-9.) When Mrs. Clark asked Plaintiff what
was wrong, Plaintiff told Mrs. Clark she had fallen on the stairs, to which Mrs. Clark responded
“[r]emember, . . . that happened to me.” (Id. at 33:10-13.) When Plaintiff was asked at her
deposition if Mrs. Clark provided any other information regarding her accident, Plaintiff
responded that Mrs. Clark “did not get into that conversation.” (Id. at 33:16.)
Plaintiff argues that Mr. Clark testified at his deposition that he recounted the
details of her fall to his brother, Bruce, and told him that the circumstances of her fall were
identical to Mrs. Clark’s accident. Although Mr. Clark testified that he told his brother about
Plaintiff’s fall, he told him that Plaintiff fell because “[s]he thought she was on the cement and
was a step higher . . . and stepped off thinking she was on the cement, and then she fell.” (Dkt.
No. 39, Attach. 2, at 34:4-6 [Clark Dep.].) Clearly, Mr. Clark’s description does not identify a
structural defect in the steps as the cause for Plaintiff’s fall.
Regarding the second conversation, which took place over the telephone, Plaintiff was
asked at her deposition what Mrs. Clark told Plaintiff, if anything, about “how she fell or what
caused her to fall?” (Id. at 32:21-22.) Plaintiff responded as follows: “She did not. She–and,
yeah, she did not, no.” (Id. at 32:23-24.) Plaintiff reaffirmed at another point in her deposition
that she did not know what caused Mrs. Clark to fall on the basement stairs. Specifically,
Plaintiff testified as follows:
So, you knew Mrs. Clark had fallen, but you didn’t know
what caused her fall, right?
She did say to me that the steps were very old, but she
didn’t get into any specifics of the defects. She just said,
those steps are so old. I remember that much.
Other than being old, she didn’t tell you anything like any
defects about the steps or anything like that?
(Id. at 38:5-13.)
In sum, Plaintiff’s deposition testimony does not reveal anything other than the fact that
Mrs. Clark had previously fallen on the basement stairs, which is undisputed. Although Mrs.
Clark allegedly stated that the steps “are so old,” this is insufficient to create a genuine dispute of
material fact regarding whether Defendants had notice of a dangerous or defective condition
because a “general awareness that a dangerous condition may be present is legally insufficient to
constitute notice of the particular condition[.]” Smith v. State, 260 A.D.2d 819, 820 (N.Y. App.
Div. 3d Dep’t 1999). Because Plaintiff has failed to cite any portion of her deposition testimony,
or any other admissible record evidence, indicating that Mrs. Clark fell due to an uneven or
sloped step (rather than simply misjudging the step), she has failed to create a genuine dispute of
material fact that Defendants had actual notice of a dangerous or defective condition on their
Whether Defendants Had Constructive Notice of a Dangerous Condition
After carefully considering the matter, the Court answers this question in the negative,
for the reasons stated by Defendants in their memoranda of law. (Dkt. No. 31, Attach. 4, at 1216 [Defs.’ Mem. of Law]; Dkt. No. 41, Attach. 1, at 12-14 [Defs.’ Reply Mem. of Law].) To
those reasons, the Court adds the following analysis.
“To prove liability based on constructive notice, the danger must have been 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.” Nussbaum, 603 F. App’x at 12 (internal quotation marks
omitted). “[C]onstructive notice will not be imputed where a defect is latent and would not be
discoverable upon reasonable inspection.” Curiale v. Sharrotts Woods, Inc., 9 A.D.3d 473, 475
(N.Y. App. Div. 2d Dep’t 2004). “To show constructive notice, the claimant must do more than
show that the defendant was generally aware of the type of condition alleged to have caused
plaintiff’s injury; he must show that the defendant was aware of the particular condition at
issue.” Borts v. U.S., 14-CV-0089, 2016 WL 2622292, at *2 (E.D.N.Y. Mar. 15, 2016) (internal
quotation marks and alterations omitted). “Whether a plaintiff has established a defendant’s
awareness of a dangerous condition at a level of specificity sufficient to establish constructive
notice turns on the facts of each case, but the inquiry is guided by the principle that
‘[c]onstructive notice of a particular condition is inextricably intertwined with the concept of
foreseeability.’” Gonzalez v. Wal-Mart Stores, Inc., 299 F. Supp. 2d 188, 194 (S.D.N.Y. 2004)
(quoting Taylor v. U.S., 121 F.3d 86, 90 [2d Cir. 1997]).
Whether Any Defect was Visible and Apparent
Missing Handrail on Open Side of the Basement Stairwell
The Court finds that, generally, a missing handrail is both visible and apparent. Deykina
v. Chattin, 12-CV-2678, 2014 WL 4628692, at *8 (E.D.N.Y. Sept. 15, 2014) (“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.”). However, the Court agrees with Defendants that they were
not required to have a handrail on the open side of their basement stairwell because their home
pre-dates the first statewide building code that required handrails on open sides.10 See Hotaling
v. City of New York, 55 A.D.3d 396, 397 (N.Y. App. Div. 1st Dep’t 2008) (“If a building was
constructed in compliance with code specifications and industry standards applicable at the time,
the owner is under no legal duty to modify the building thereafter in the wake of changed
standards.”); Ndiaye v. NEP W. 119th St. L.P., 145 A.D.3d 564, 565 (N.Y. App. Div. 1st Dep’t
2016) (“Defendants established their entitlement to judgment as a matter of law by submitting
evidence that there was no defective condition on the stairs . . . and that the building was
constructed before 1916 and complied with the requirements of the applicable Tenement House
Law, which only required one handrail on staircases like the one at issue.”) (internal citation
omitted). Indeed, Plaintiff’s expert acknowledged as much in a supplement to his expert report.
(Dkt. No. 39, Attach. 5, at 12 [Ex. “B” to Peden Decl.].)
In any event, the Court agrees with Defendants that Plaintiff has failed to create a
genuine dispute of material fact regarding whether the missing handrail either caused her fall or
According to Plaintiff’s expert, “[t]he first statewide application of a building
code in New York State was 1951” and, according to Broome County tax records, Defendants’
home was constructed in 1940. (Dkt. No. 39, Attach. 5, at 12 [Ex. “B” to Peden Decl.].)
would have prevented her injuries. (Dkt. No. 41, Attach. 1, at 8-10 [Defs.’ Reply Mem. of
Law].) This is because Plaintiff testified at her deposition that, at the time of the accident, she
was holding onto the handrail on the right side of the stairwell with her right hand while carrying
shirts in her left hand. (Dkt. No. 31, Attach. 1, at 39:5-6, 40:21-23, 41:8-11, 42:5-7 [Pl.’s Dep.].)
Although Plaintiff submitted a declaration accompanying her opposition memorandum of law
stating that she would have used a handrail on the open side of the staircase had one been present
and/or that it would have prevented her fall (Dkt. No. 39, Attach. 4 [Pl.’s Decl.]), the Court finds
this to be wholly speculative because her deposition testimony establishes that both of her hands
were preoccupied. See Igbodudu-Edwards v. Bd. of Managers of the Parkchester N. Condo.,
Inc., 105 A.D.3d 448, 449 (N.Y. App. Div. 1st Dept’ 2013) (“[G]iven that plaintiff was holding
the right-side handrail at the time she fell, it would require pure speculation to assume that had
there been an intermediate handrail, she would have been able to grasp it as she fell, avoiding her
injury.”); Bardales v. VAM Realty Corp., 124 A.D.3d 707, 707 (N.Y. App. Div. 2d Dep’t 2015)
(“Moreover, since the plaintiff was carrying a pot weighing at least 35 to 40 pounds with both
hands as he descended the staircase, any alleged defect in the handrail was not a proximate cause
of the fall”); Daria v. Beacon Capital Co., 299 A.D.2d 312, 312 (N.Y. App. Div. 2d Dep’t 2002)
(“[T]o the extent the plaintiffs claim that the stairway was defective because it lacked a second
handrail, we note that at the time of the accident, the injured plaintiff was carrying a mirror with
both of his hands. Thus, the alleged lack of a second handrail was not the proximate cause of his
fall.”); Jenkins v. N.Y.C. Housing Auth., 11 A.D.3d 358, 359 (N.Y. App. Div. 2004) (“[P]laintiff
cannot prevail on her claim that the staircase, which had a handrail on the right side only, should
have had handrails on both sides, since she failed to offer any evidence indicating that the
omission of a left-side handrail (alongside the wall) was a proximate cause of her fall.”).
The Step’s Uneven Surface / Slope and Worn and Broken-Off
Nosings of the Treads
The Court finds that Plaintiff has failed to create a genuine dispute of material fact
regarding whether the structural defects identified by her expert were visible and apparent.
Specifically, Plaintiff’s expert made the following measurements regarding the subject staircase:
The stair is approximately 2'-10" wide. The treads are about 2'-8
½” in length and have a tread width that varies from 8 ¼” to 8 ½”
as measured from the edge of the nosing to the edge of the nosing.
The actual width of the stepping surface of the 2 x 8 tread is 7 ½”.
The riser heights vary from 7 ¼” to 8 ¼”. . . . At the bottom 2
steps, the edge of the wood is worn leaving an irregular radius
along the nosing. The treads are sloped from right to left facing
down the stair. The slope varies up to ½” per 1'-0" on the lowest
(Dkt. No. 39, Attach. 5, at 5 [Peden Exp. Report].)
Although Plaintiff’s expert concedes that the “first statewide application of a building
code in New York” does not apply to the subject premises, he cites three different publications in
support of his conclusion that “[g]uidelines for stair construction were well established before
1940.” (Dkt. No. 39, Attach. 5, at 1 [Peden Exp. Report].) More specifically, Plaintiff’s expert
cites a publication from 1903 that states that “[t]he height of the riser and width of step are
governed by the space allowed for the stairs, but as a general rule the step should not be less than
9 inches wide and the riser should not exceed 8 inches in height.” (Dkt. No. 39, Attach. 5, at 1
[Peden Supplemental Exp. Report].) Next, Plaintiff’s expert cites a publication from 1920 that
states that “the best practice is to make risers in ordinary stairs from 7 to 7 ½ inches in [height].
Treads 10 inches wide are most commonly required with 7 to 7 ½ inches in height of riser.” (Id.
at 2.) Finally, Plaintiff’s expert cites a publication from 1932 that includes a dimensional chart
showing a “maximum riser height of 8 inches correlating to a tread width of 9 d inches.” (Id.)
Based upon these publications and his analysis of the basement staircase, Plaintiff’s
expert made the following three general conclusions: (1) the variability in the riser and tread
dimensions that existed in the subject stair made it unsafe, (2) the tread dimensions of the stair
were less than 9 inches and therefore were too small for safe descent, and (3) the variation in
riser height, the sloping condition of the treads and the worn and broken tread covering indicate
that the stair has not been maintained in good condition. (Id.) Plaintiff’s expert further opined
that “[t]he stair treads are excessively worn have damaged nosings, are uneven and unlevel and
violate applicable codes and the standard of care for safe property maintenance. . . . The failure
of the home owner to replace the existing dangerous treads created the dangerous conditions that
caused [Plaintiff’s] fall.” (Dkt. No. 39, Attach. 5, at 7 [Peden Exp. Report].)
For the sake of brevity, the Court will not linger on the fact that Defendant Thomas Clark
inspected the steps regularly and did not find any visible or apparent defective conditions. See
Rapino v. City of New York, 299 A.D.2d 470, 471 (N.Y. App. Div. 2d Dep’t 2002) (“If a defect
could not have been discovered by a layman, even by inspection, it is considered a latent
defect.”); Nicoletti v. Iracane, 38 Misc.3d 1220(A) (N.Y. Sup. Ct. Kings Cty. 2013)
(“Reasonable inspection, not inspection for latent defects, is required to establish constructive
notice.”). Nor will the Court linger on the fact that Plaintiff testified at her deposition that she
looked at the steps before walking on them and did not observe anything wrong with them. (Dkt.
No. 31, Attach. 1, at 44:13-23 [Pl.’s Dep.].) More important is the fact that “[c]ourts 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.” Deykina, 2014 WL 4628692, at *8; see also 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”); Ferington v. Dudkowski, 49 A.D.3d 1267, 1268 (N.Y. App. Div. 4th Dep’t 2008)
(finding that a step that was “one third of an inch out of level” was “a minor defect” and “would
not be ‘visible and apparent’ upon a reasonable inspection”).
Defendants rely on McHale for the proposition that any small differences in the height
and length of their basement steps were not visible and apparent. In McHale, then-District Judge
Pooler found that defendants, who conducted annual inspections of the stairs at issue and never
received any complaints about the stairs, had no way of knowing “that the stairs’ riser heights
varied by more than one-eighth of an inch and that this variance constituted a structural defect.”
McHale, 893 F. Supp. at 149.
Conversely, in Diaz v. Calabrese, 13-CV-1531, 2014 WL 6883517 (E.D.N.Y. Dec. 4,
2014), the United States District Court for the Eastern District of New York found that a jury
could conclude that a two-inch difference in the height of planks in a deck would have been
visible and apparent to defendants. Diaz, 2014 WL 6883517, at *10. The district court further
noted that “a jury could reasonably find that the photographs [of the deck] show clearly that
nearby defects in the decking were visible and apparent, and that defendants should therefore
have been on notice of the specific defect in question located only a foot or two away.” Id.
Here, the Court agrees with Defendants that the structural defects identified by Plaintiff’s
expert are latent rather than visible and apparent, and that Defendants would not have known
about these defects without a structural analysis. Specifically, Plaintiff’s expert opined that the
tread dimensions of the steps in the basement staircase were too small for safe descent because
they were less than 9 inches. However, the measurements made by Plaintiff’s expert show that
the tread width of the steps vary from 8 ¼” to 8 ½” and are approximately 2'-8 ½” in length.
This is less than a one inch difference from the 9 inch guideline. Granted, Plaintiff’s expert also
found that the actual width of the stepping surface of the 2 x 8 tread is 7 ½”, which is a 1 ½”
difference. Nevertheless, the Court finds that a reasonable jury could not conclude that laymen
such as Defendants would find these differences in the dimensions to be visible and apparent.
Similarly, Plaintiff’s expert found that the riser heights in the basement staircase varied
from 7 ¼” to 8 ¼” and opined that this variation contributed to Plaintiff’s fall. Once again, the
Court finds that a one inch difference in variation would not be visible and apparent to laymen
such as Defendants.11 Likewise, although Plaintiff’s expert found that the nosing edge of each
tread was worn and chipped, which may have been visible and apparent, the Court nonetheless
finds that this defect, in and of itself, would not have drawn Defendants’ attention to the irregular
height and length of their steps. Perhaps most importantly, the Court has reviewed the various
photographs of the basement staircase that were submitted by the parties (Dkt. No. 31, Attach. 3,
at 6-9) and finds that a reasonable jury could not conclude that there is a discernable difference
The Court reaches this conclusion even if it were to utilize the guidelines from the
1920 publication cited by Plaintiff’s expert. Specifically, that publication states that “[t]reads 10
inches wide are most commonly required with 7 to 7 ½ inches in height of riser.” (Dkt. No. 39,
Attach. 5, at 2 [Peden Supplement Exp. Report].) Therefore, assuming the average height of the
risers in the basement staircase is 7 ½”, the treads would need to be 10 inches wide. Because
Plaintiff’s expert found the tread width to vary from 8 ¼” to 8 ½”, the tread width would need to
be approximately 1 ½" wider to meet this guideline. However, as discussed above, the Court
finds that a reasonable jury could not find that a 1 ½” difference in dimension would be visible
and apparent to laymen such as Defendants.
in the dimensions of each step that would make any alleged structural defect visible and
Finally, because the Court finds that Plaintiff has failed to create a genuine dispute of
material fact regarding whether the alleged structural defects were visible and apparent, the
Court need not decide whether these alleged defects existed for a sufficient length of time before
Plaintiff’s accident to permit Defendants an opportunity to discover and remedy them. However,
because Defendants purchased the subject premises approximately 45 years ago and made no
changes to the staircase before Plaintiff’s fall, there can be no question that any alleged structural
defect in the stairs existed for a sufficient length of time before the accident.
ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 31) is
GRANTED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety.
The Clerk of the Court is directed to enter judgment in favor of the Defendants and close
Dated: September 27, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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