Nipon et al v. The Yale Club of New York City
Filing
31
OPINION AND ORDER re: 18 FIRST MOTION for Summary Judgment filed by The Yale Club of New York City. Accordingly, for all the foregoing reasons, I deny defendant's motion for summary judgment in all respects. (Signed by Magistrate Judge Henry B. Pitman on 11/18/2014) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
ALBERT NIPON, et al.,
:
13 Civ. 1414 (HBP)
Plaintiffs,
-against-
:
:
THE YALE CLUB OF NEW YORK CITY,
Defendant.
OPINION
AND ORDER
:
:
-----------------------------------X
PITMAN, United States Magistrate Judge:
I.
Introduction
Plaintiffs Albert Nipon and Pearl Nipon commenced this
action against the Yale Club of New York City (the "Yale Club")
to recover for injuries after Albert Nipon fell on the front step
of the Yale Club (Complaint, dated March 1, 2013 (Docket Item 1)
("Compl.")).
By notice of motion dated June 3, 2014 (Docket Item
18), the Yale Club moves for summary judgment, seeking dismissal
of the complaint in its entirety.
The parties have consented to
my exercising plenary jurisdiction pursuant to 28 U.S.C. §
636(c).1
1
Docket Item 13 is a third-party complaint naming two
additional entities as third-party defendants. These third-party
defendants have not consented to my exercising plenary
jurisdiction in this matter. However, no proof of service with
(continued...)
For the following reasons, I deny defendant's motion
for summary judgment in its entirety.
II.
Facts
On October 18, 2011 at approximately 11:30 A.M., Albert
Nipon fell as he was entering the Yale Club (Plaintiffs' Answers
and Objections to Interrogatories ("Pls.' Int. Ans."),2 annexed
as Ex. D to the Declaration of David Weiser, Esq., dated June 4,
2014 (Docket Item 22) ("Weiser Decl."), at 17).
Mr. Nipon, who
was eighty-four years old at the time, sustained serious injuries
as a result of the fall (see Pls.' Int. Ans. at 17-18, annexed as
Ex. D to Weiser Decl.; Albert Nipon's Medical Records, annexed as
Ex. 6 to the Declaration of Martin P. Duffey, Esq., dated June
23, 2014 (Docket Item 26) ("Duffey Decl.")).
1
(...continued)
respect to the third-party complaint has been filed, and the
third-party defendants are not, therefore, presently parties to
this action. Accordingly, the lack of consent by the third-party
defendants is immaterial.
2
Because Plaintiffs' Interrogatory Answers are not serially
paginated, I use the page numbers assigned by the Court's ECF
system.
2
A.
The Condition
of the Entrance
The entrance at which Mr. Nipon fell had a single step,
about four inches high, that led to a platform and a revolving
door (Deposition of Albert Nipon ("Nipon Dep."),3 annexed as Ex.
H to Weiser Decl., at 58-60; Deposition of Victor Famulari
("Famulari Dep."), annexed as Ex. L to Weiser Decl., at 44-45).
The step had a nosing,4 and a handrail on either side (Nipon Dep.
at 74-75, annexed as Ex. H to Weiser Decl.; see also Defendant's
Photographs of the Tread ("Def.'s Photos."), annexed as Ex. N to
Weiser Decl.; Animated Re-enactment of Albert Nipon's Accident
("Re-enactment"), annexed as Ex. S to Weiser Decl.).
The en-
trance also had a side awning panel that projected outward from
the building and reached from the sidewalk to above the doorway
(see Surveillance Tape of Albert Nipon's Accident ("Surveillance
Tape"), annexed as Ex. Q to Weiser Decl.).
The side awning
appears to have been a piece of opaque blue canvas, with a
3
Mr. Nipon has been diagnosed with dementia. The testimony
cited herein is from the second session of his deposition. The
first session of Mr. Nipon's deposition was terminated after he
was unable to respond clearly to questions. Mr. Nipon was
subsequently evaluated by his treating physician and found to be
able to proceed before his deposition was continued.
4
A nosing is the rounded portion of a stair tread that
projects out over the riser. The riser is the vertical face of
the step.
3
transparent panel in the middle; its apparent purpose was to
shield the entry from wind and precipitation (see Surveillance
Tape, annexed as Ex. Q to Weiser Decl.).
The step itself was also marked, although it is not
clear from the record to what extent it was marked at the time of
Mr. Nipon's fall.
The parties do not appear to dispute that
there was a striped black and yellow piece of wood ("Marker") on
the riser of the step (Defendant's Memorandum of Law,5 dated May
30, 2014 (Docket Item 24) ("Def.'s Mem."), at 5-6; Plaintiffs'
Memorandum of Law in Opposition to Defendant's Motion for Summary
Judgment, dated June 23, 2014 (Docket Item 28) ("Pls.' Mem."), at
8 n.3).
The Yale Club's Chief Engineer, Stephan M. Lehman,
testified that the Marker was installed in approximately 2000
(Deposition of Stephan M. Lehman ("Lehman Dep."), annexed as Ex.
K to Weiser Decl., at 22), and the Yale Club's Director of
Security, Raymond Caltagirone, testified at his deposition that
the Marker was present on the riser at the time Mr. Nipon fell
(Deposition of Raymond Caltagirone ("Caltagirone Dep."), annexed
as Ex. J to Weiser Decl., at 11, 26-28).
The parties do not
dispute that it was not until later in 2011, after Mr. Nipon's
accident, that the Marker was removed from the riser and replaced
5
Because this document is not serially paginated, I use the
page numbers assigned by the Court's ECF system.
4
with unpainted granite (Lehman Dep. at 57, annexed as Ex. K to
Weiser Decl.; Defendant's Photographs of the Marker, annexed as
Ex. P to Weiser Decl.; Defendant's Statement of Uncontested Facts
- Local Rule 56.1, dated May 14, 2014 (Docket Item 23) ("Def.'s
56.1") ¶ 25; Pls.' Mem. at 8).
The parties do dispute whether the tread of the step
was painted bright yellow at the time of Mr. Nipon's fall.
Defendant has submitted photographs it claims show the tread
painted bright yellow (Def.'s Mem. at 5); however, the photographs are black and white, and while one is dated August 23,
2012, the balance are undated (Def.'s Photos., annexed as Ex. N
to Weiser Decl.).
Plaintiffs have submitted two photographs,
both in color, one of which shows the step in 2012 with the tread
painted bright yellow and the Marker replaced with unpainted
granite; the second photograph shows the Marker intact and the
tread unpainted except for yellow paint along the nosing that
appears to be almost entirely worn off (Plaintiffs' Photographs
of the Yale Club Step ("Pls.' Photos."), annexed as Ex. 3 to
Duffey Decl.).
Mr. Nipon testified at his deposition that he
does not "remember any color on the [tread of the] step[]," that
it was his "feeling, it wasn't painted" and that he did not know
whether the Marker was present at the time of his accident (Nipon
Dep. at 76, 78, 87-88, annexed as Ex. H to Weiser Decl.).
5
A
surveillance tape taken at the time of the accident does not show
the step (Surveillance Tape, annexed as Ex. Q to Weiser Decl.).
B.
Mr. Nipon's
Deposition Testimony
Mr. Nipon testified that he "tripp[ed] over the step
and f[ell] into the entrance to the [Yale C]lub" (Nipon Dep. at
47, annexed as Ex. H to Weiser Decl.).
He "knew there was a
step[, a] step up" but also did not remember if he saw the step
before his fall (Nipon Dep. at 52, annexed as Ex. H to Weiser
Decl.).
Mr. Nipon testified that his "foot got caught on a step
and [he] fell forward" and that he "[did not] know what caused
[his foot] to get caught" (Nipon Dep. at 48-49, annexed as Ex. H
to Weiser Decl.).
Although he later stated that his foot got
caught on "[t]he lip of the step," he subsequently testified that
he was assuming this fact and could not state "as a fact" that
his foot got caught (Nipon Dep. at 67, annexed as Ex. H to Weiser
Decl.).
When asked, "When you say your right foot got caught
onto the step, did your right foot get entrapped into something,
did your right foot just trip on the step or something else,"
plaintiff responded, "Well I can't say exactly, but I just
tripped on the step" (Nipon Dep. at 49, annexed as Ex. H to
Weiser Decl.).
Mr. Nipon stated that he was "looking into . . .
6
the entrance" as he was approaching the step (Nipon Dep. at 52,
annexed as Ex. H to Weiser Decl.).
He had never been to the Yale
Club before (Nipon Dep. at 56, annexed as Ex. H to Weiser Decl.).
Mr. Nipon testified that no one was exiting the revolving door as
he entered (Nipon Dep. at 71-72, annexed as Ex. H to Weiser
Decl.), but the video tape of the incident depicts someone
exiting at the time Mr. Nipon was approaching the entrance (see
Surveillance Tape, annexed as Ex. Q to Weiser Decl.).
C.
Evidence of Compliance
with the Building Code
Defendant has also submitted testimony from a licensed
architect, Victor Famulari, who testified that the front step of
the Yale Club was "not a code compliant step by today's law, but
when the building was built, it is, [for] lack of a better word,
grandfathered in.
It's accepted" (Famulari Dep. at 22, annexed
as Ex. L to Weiser Decl.).
Mr. Famulari testified that the New
York City Department of Buildings ("Department of Buildings")
reviewed and approved renovations made in 2005 to the Yale Club
entrance as being compliant with the 1968 Building Code (Famulari
Dep. at 33-37, annexed as Ex. L to Weiser Decl.); see also
Department of Buildings Application ("Dep't of Buildings Appl."),
annexed as Ex. M to Weiser Decl.; Blueprints for the Yale Club
7
Renovation ("Blueprints"), annexed as Ex. V to Weiser Decl.;
Department of Buildings Letter of Completion, annexed as Ex. W to
Weiser Decl.).
Mr. Famulari implied that the step was governed
by the 1968 Code at the time the 2005 renovations were approved
by the Department of Buildings (see Famulari Dep. at 33-37,
annexed as Ex. L to Weiser Decl.).6
Mr. Famulari also testified
that the step had a "legal nosing" because the nosing projected
between an inch and an inch and a half past the riser and that
the nosing was "not a tripping hazard" (Famulari Dep. at 43-44,
annexed as Ex. L to Weiser Decl.).
Oddly, the Yale Club has submitted evidence that other
visitors to the Yale Club had fallen on the same step prior to
Mr. Nipon's accident (Caltagirone Dep. at 47-48, 55, 87-89, 9195, annexed as Ex. J to Weiser Decl.; see also Yale Club Incident
and Accident Reports, annexed as Ex. O to Weiser Decl.).
The
Yale Club's purpose in submitting this evidence is unclear.
In
addition, the Yale Club has submitted evidence that the Department of Buildings visited the premises the day after Mr. Nipon's
6
Mr. Famulari appears to imply that the Yale Club's apparent
compliance with the 1968 Code, when the 2005 renovations to the
front step were completed in 2006, demonstrates both that the
1968 Code still applied to the Yale Club at the time of Mr.
Nipon's fall and that the step was still compliant with the 1968
Code at the time of Mr. Nipon's fall (see Famulari Dep. at 22,
33-37, annexed to Ex. L to Weiser Decl.).
8
fall in response to an anonymous complaint filed in June 2011,
and that the inspector determined that the step was not a code
violation and "not a trip hazard[]" (Department of Buildings
Response to Complaint ("Dep't of Buildings Resp."), annexed as
Ex. E to Weiser Decl.).
D.
Expert
Opinions
Both parties obtained expert opinions.
The Yale Club
submitted the opinion of an engineer, who opined that the step
was in compliance with the 1968 Building Code (Expert Opinion of
Paul W. Dorothy ("Dorothy Op."), annexed as Ex. R to Weiser
Decl.).
Defendant also submitted plaintiffs' expert opinion, an
opinion from a human factors expert who opined that a single
shallow step is dangerous because it is lower in the field of
vision and, therefore, less visible "due to increased photoreceptor spacing, crowding and distance from the focus of attention" (Expert Opinion of Marc Green, annexed as Ex. T to Weiser
Decl., at 4).
9
III. Analysis
A.
Legal Standards
1.
Summary Judgment
The standards applicable to a motion for summary
judgment are well-settled and require only brief review.
Summary judgment may be granted only where there
is no genuine issue as to any material fact and the
moving party . . . is entitled to a judgment as a
matter of law. Fed.R.Civ.P. 56(c). In ruling on a
motion for summary judgment, a court must resolve all
ambiguities and draw all factual inferences in favor of
the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). To grant the motion, the court must determine
that there is no genuine issue of material fact to be
tried. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine
factual issue derives from the "evidence [being] such
that a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct.
2505. The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), or by a factual
argument based on "conjecture or surmise," Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The Supreme Court teaches that "all that is required [from a
nonmoving party] is that sufficient evidence supporting
the claimed factual dispute be shown to require a jury
or judge to resolve the parties' differing versions of
the truth at trial." First Nat'l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575,
20 L.Ed.2d 569 (1968); see also Hunt v. Cromartie, 526
U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).
It is a settled rule that "[c]redibility assessments,
choices between conflicting versions of the events, and
10
the weighing of evidence are matters for the jury, not
for the court on a motion for summary judgment."
Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006); accord Hill
v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011); Jeffreys v. City
of New York, 426 F.3d 549, 553-54 (2d Cir. 2005); Powell v. Nat'l
Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004).
"Material facts are those which 'might affect the outcome of the suit under the governing law,' and a dispute is
'genuine' if 'the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'"
Coppola v. Bear
Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007), quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord McCarthy
v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007).
"'[I]n ruling on a motion for summary judgment, a judge must ask
himself not whether he thinks the evidence unmistakably favors
one side or the other but whether a fair-minded jury could return
a verdict for the [non-movant] on the evidence presented[.]'"
Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir.
2007) (second alteration in original), quoting Readco, Inc. v.
Marine Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).
Entry of summary judgment is appropriate "against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
11
which that party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
"In such a
situation, there can be 'no genuine issue as to any material
fact,' since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all
other facts immaterial."
Celotex Corp. v. Catrett, supra, 477
U.S. at 322-23, citing Fed.R.Civ.P. 56.
"[S]ummary judgment is highly unusual in a negligence
action where the assessment of reasonableness generally is a
factual question to be addressed by the jury."
King v. Crossland
Sav. Bank, 111 F.3d 251, 259 (2d Cir. 1997); accord Stagl v.
Delta Airlines, Inc., 52 F.3d 463, 470-71 (2d Cir. 1995), citing
Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520 n.8, 407
N.E.2d 451, 458 n.8, 429 N.Y.S.2d 606, 614 n.8 (1980); Ugarriza
v. Schmieder, 46 N.Y.2d 471, 474, 386 N.E.2d 1324, 1325, 414
N.Y.S.2d 304, 305 (1979) ("Negligence cases by their very nature
do not usually lend themselves to summary judgment, since often,
even if all parties are in agreement as to the underlying facts,
the very question of negligence is itself a question for jury
determination.").
12
2.
Negligence
Under New York law,7 negligence requires proof of "'(1)
a duty owed by the defendant to the plaintiff, (2) a breach
thereof, and (3) injury proximately resulting therefrom.'"
Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir. 2006),
quoting Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 489
N.E.2d 1294, 1294, 499 N.Y.S.2d 392, 392 (1985).
When the claim
is based on an alleged defect in defendant's premises, plaintiff
must prove that defendant created the condition or had actual or
constructive knowledge of its existence.
Manning v. Tracy J's,
Inc., 06 Civ. 956 (DF), 2008 WL 1780048 at *5 (S.D.N.Y. Apr. 17,
2008) (Freeman, M.J.), citing Miller v. Gimbel Bros., 262 N.Y.
107, 108, 186 N.E. 410, 410 (1933) (per curiam), Goldman v.
Waldbaum, Inc., 248 A.D.2d 436, 437, 669 N.Y.S.2d 669, 670 (2d
7
Both parties rely on New York law and do not claim that the
law of any other forum applies; "such 'implied consent . . . is
sufficient to establish choice of law.'" Motorola Credit Corp.
v. Uzan, 388 F.3d 39, 61 (2d Cir. 2004) (alteration in original),
quoting Krumme v. WestPoint Stevens, Inc., 238 F.3d 133, 138 (2d
Cir. 2000); accord Teitelbaum v. Lay Siok Lin, 423 F. App'x 106,
106 (2d Cir. 2011) (summary order). See generally Celle v.
Filipino Reporter Enters. Inc., 209 F.3d 163, 175 (2d Cir. 2000)
("Since no party has challenged the choice of New York . . . law,
all are deemed to have consented to its application. No reason
of policy warrants a departure from their implied choice-of-law.
In practice, litigants often ignore conflicts rules, opting
instead to apply the law of the forum . . . " (internal citations
omitted)).
13
Dep't 1998) and Ohanessian v. Chase Manhattan Realty Leasing
Corp., 193 A.D.2d 567, 567, 598 N.Y.S.2d 204, 205 (1st Dep't
1993).
Although the duty of care owed by a land owner formerly
turned on whether the plaintiff was a trespasser, licensee or
invitee, the New York Court of Appeals eliminated these distinctions in 1976.
Basso v. Miller, 40 N.Y.2d 233, 241, 352 N.E.2d
868, 872, 386 N.Y.S.2d 564, 568 (1976).
New York land owners now
owe all individuals on their property "a duty of reasonable care
under the circumstances to maintain their property in a safe
condition."
Tagle v. Jakob, 97 N.Y.2d 165, 168, 763 N.E.2d 107,
108-09, 737 N.Y.S.2d 331, 332-33 (2001); accord Smith v. N.Y.
Enter. Am., Inc., 06 Civ. 3082 (PKL), 2008 WL 2810182 at *4
(S.D.N.Y. July 21, 2008) (Leisure, D.J.), quoting Di Ponzio v.
Riordan, 89 N.Y.2d 578, 582, 679 N.E.2d 616, 618, 657 N.Y.S.2d
377, 379 (1997).
This obligation includes a duty to "elim-
inat[e], protect[] against, or warn[] of dangerous, defective, or
otherwise hazardous conditions."
Pinero v. Rite Aid Inc., 294
A.D.2d 251, 252, 743 N.Y.S.2d 21, 22-23 (1st Dep't 2002), aff'd,
99 N.Y.2d 541, 783 N.E.2d 895, 753 N.Y.S.2d 805 (2002).
"'[T]he
duty to maintain premises in a reasonably safe condition is
analytically distinct from the duty to warn, and . . . liability
may be premised on a breach of the duty to maintain reasonably
14
safe conditions even where the obviousness of the risk negates
any duty to warn.'"• Westbrook v. WR Activities-Cabrera Mkts., 5
A.D.3d 69, 73, 773 N.Y.S.2d 38, 42 (1st Dep't 2004), quoting
Cohen v. Shopwell, Inc., 309 A.D.2d 560, 562, 765 N.Y.S.2d 40, 42
(1st Dep't 2003); see also Michalski v. Home Depot, Inc., 225
F.3d 113, 121 (2d Cir. 2000) ("[T]he open and obvious nature of a
dangerous condition on its property does not relieve a landowner
from a duty of care where harm from an open and obvious hazard is
readily foreseeable by the landowner and the landowner has reason
to know that the visitor might not expect or be distracted from
observing the hazard."
(citing Restatement (Second) of Torts §
343A (1965))); 1A New York Pattern Jury Instructions - Civil PJI
2:90 (3d ed. 2014).
As a result, "the open and obvious nature of
a hazard merely negates the duty to warn of the hazard, not
necessarily all duty to maintain premises in a reasonably safe
condition."
Westbrook v. WR Activities-Cabrera Mkts., supra, 5
A.D.3d at 73, 773 N.Y.S.2d at 42 (emphasis in original); accord
Saretsky v. 85 Kenmare Realty Corp., 85 A.D.3d 89, 92, 924
N.Y.S.2d 32, 34 (1st Dep't 2011); DiVietro v. Gould Palisades
Corp., 4 A.D.3d 324, 325, 771 N.Y.S.2d 527, 529 (2d Dep't 2004),
citing Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40, 43
(2d Dep't 2004).
15
"[T]he issue of whether a hazard is latent or open and
obvious is generally fact-specific and thus usually a jury
question, [but] a court may determine that a risk was open and
obvious as a matter of law when the established facts compel that
conclusion."
Tagle v. Jakob, supra, 97 N.Y.2d at 169, 763 N.E.2d
at 110, 737 N.Y.S.2d at 334 (internal citations omitted).
Similarly, "'[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.'"• Surujnaraine v. Valley
Stream Cent. High Sch. Dist., 88 A.D.3d 866, 867, 931 N.Y.S.2d
119, 120 (2d Dep't 2011), quoting Trincere v. County of Suffolk,
90 N.Y.2d 976, 977, 688 N.E.2d 489, 490, 655 N.Y.S.2d 615, 616
(1997) (emphasizing the fact-specific nature of assessing whether
a dangerous condition exists).
B.
Analysis of
Plaintiffs' Claim
Plaintiffs assert a claim for common law negligence,
alleging that defendant failed to maintain the entrance to its
property in reasonably safe condition (Compl. ¶¶ 27-28).
Defen-
dant seeks summary judgment dismissing the complaint, arguing
that the condition of its entrance was open and obvious and not
16
inherently dangerous (Def.'s Mem. at 4, 6).
Defendant also
argues that even if the entrance was a hazard, plaintiffs have
not established that defendant was on notice of the allegedly
dangerous condition, nor have plaintiffs established causation
(Def.'s Mem. at 6-7).
1.
Open and
Obvious Condition
Defendant first argues that it did not breach any duty
to Mr. Nipon because the step was open and obvious (Def.'s Mem.
at 4).
In support of this contention, defendant submitted a
photograph of the Yale Club entrance and argues that the yellow
tread and Marker on the riser rendered the step open and obvious
at the time of Mr. Nipon's fall (Def.'s Mem. at 5-6; Def.'s
Photos., annexed as Ex. N to Weiser Decl.).
Defendant also
submitted the surveillance tape of Mr. Nipon's fall and an
animated re-enactment purportedly showing that Mr. Nipon had an
unobstructed view of the step (Def.'s Mem. at 7-8; Surveillance
Tape, annexed as Ex. Q to Weiser Decl.; Re-enactment, annexed as
Ex. S to Weiser Decl.).
In addition, defendant submitted deposi-
tion testimony in which Mr. Nipon stated that he knew there was a
step at the Yale Club entrance (Def.'s 56.1 ¶ 10).
17
In response, plaintiffs have submitted Mr. Nipon's own
deposition testimony that he did not see the step before his fall
and that he did not see yellow paint on the tread (Pls.' Mem. at
5-7).
Plaintiffs also argue that the surveillance video shows
that Mr. Nipon did not look down and, thus, could not have seen
the step, and that the video also shows that his view of the step
was blocked by the side awning as he approached the entrance from
the sidewalk (Pls.' Mem. at 4-5, 8; Surveillance Tape, annexed as
Ex. Q to Weiser Decl.).
Plaintiffs have submitted a color
photograph showing the step with no paint on the tread except for
a small amount of yellow at one end of the nosing; although this
photograph is not dated, it appears to have been taken before
late 2011 because it shows the Marker on the riser (see Pls.'
Photos., annexed as Ex. 3 to Duffey Decl.; Lehman Dep. at 48, 57,
annexed as Ex. K to Weiser Decl.).
Under New York law, "'even visible hazards do not
necessarily qualify as open and obvious' because the 'nature or
location of some hazards . . . make them likely to be overlooked.'"
Saretsky v. 85 Kenmare Realty Corp., supra, 85 A.D.3d
at 92, 924 N.Y.S.2d at 34, quoting Westbrook v. WR ActivitiesCabrera Mkts., supra, 5 A.D.3d at 72, 765 N.Y.S.2d at 41.
New
York courts have shown great reluctance to grant summary judgment
on the theory that a condition is open and obvious.
18
See e.g.,
Belsinger v. M & M Bowling & Trophy Supplies, Inc., 108 A.D.3d
1041, 1043, 969 N.Y.S.2d 644, 646 (4th Dep't 2013) (finding a
question of fact as to whether step was open and obvious when
"the sign [warning of the step] was faded and accompanied by
several other signs, thus potentially reducing its effectiveness
. . . [and] defendants did not paint or mark the step with bright
colors or otherwise draw attention to it"); Hayes v. Texas
Roadhouse Holdings, LLC, 100 A.D.3d 1532, 1533, 954 N.Y.S.2d 348,
350 (4th Dep't 2012) (finding a question of fact as to whether
curb was open and obvious notwithstanding plaintiff's testimony
that she did not look for or notice the curb); Jouniene v. H.R.H.
Constr. Corp., 6 A.D.3d 199, 200-01, 774 N.Y.S.2d 525, 526-27
(1st Dep't 2004) (finding a question of fact as to whether a pipe
extending horizontally from a building was open and obvious to a
pedestrian walking into "the glare from the sun"); Westbrook v.
WR Activities-Cabrera Mkts., supra, 5 A.D.3d at 70, 773 N.Y.S.2d
at 41 (finding a question of fact as to whether a cardboard box
on the floor of an aisle in a grocery store was open and obvious); Mauriello v. Port Auth. of New York & New Jersey, 8 A.D.3d
200, 200-01, 779 N.Y.S.2d 199, 200-01 (1st Dep't 2004) (finding a
question of fact as to whether a ten inch high track on the floor
of a baggage claim area was open and obvious); De Conno v. Golub
Corp., 255 A.D.2d 734, 735, 680 N.Y.S.2d 727, 728 (3d Dep't 1998)
19
(finding a question of fact as to whether an orange marker cone
in aisle of a grocery store was open and obvious).
Defendant has not sustained its burden of showing that
the step was open and obvious as a matter of law.
The photograph
submitted by defendant is not probative of the condition of the
tread at the time of Mr. Nipon's fall.
The photograph is black
and white and dated almost a year after Mr. Nipon's accident (see
Def.'s Photos., annexed as Ex. N to Weiser Decl.).
The photo-
graph was taken after the Marker was replaced with a granite
strip, which defendant does not dispute occurred after Mr.
Nipon's fall.
The surveillance tape is also not probative of the
condition of the step because the step is not visible in the
footage (Surveillance Tape, annexed as Ex. Q to Weiser Decl.).
While the parties agree that the Marker was present on
the riser at the time of Mr. Nipon's fall, given the nature of
this entrance, there is a question of fact as to whether the
Marker rendered the step open and obvious to a first-time visitor
to the Yale Club.
Although the Marker was on the riser at the
time of the accident, because of the side awning panel and the
nosing that extended over the riser, the step may not have been
visible from the sidewalk on which Mr. Nipon approached (see
Surveillance Tape, annexed as Ex. Q to Weiser Decl.).
In addi-
tion, Mr. Nipon's testimony is ambiguous as to whether he saw the
20
step (see Nipon Dep. at 52, annexed as Ex. H to Weiser Decl.).
The evidence here is not sufficient to establish conclusively
that the step was open and obvious as a matter of law at the time
of Mr. Nipon's accident.
Accordingly, I deny summary judgment on the issue of
whether the step was open and obvious.
2.
Dangerous Condition
Defendant also appears to argue that the entrance to
the Yale Club did not constitute a dangerous condition because
the step was in compliance with the New York City Building Code
(see Def.'s Mem. at 3-4).
Defendant has submitted testimony from
an architect and an engineer and documents from the Department of
Buildings in support of this contention (see Dep't of Buildings
Resp., annexed as Ex. E to Weiser Decl.; Famulari Dep. at 43-44,
annexed as Ex. L to Weiser Decl.; Dep't of Buildings Appl.,
annexed as Ex. M to Weiser Decl.; Dorothy Op., annexed as Ex. R
to Weiser Decl.; Blueprints, annexed as Ex. V to Weiser Decl.).
Plaintiffs dispute whether the step complied with the
applicable Building Code (Pls.' Mem. at 15-19) and also argue
that, in any event, compliance with the Building Code does not
establish that defendant acted with due care as a matter of law
(Pls.' Mem. at 13).
21
Even if the step did comply with the New York City
Building Code, an issue that I need not and do not decide, that
fact would not be dispositive of the issue of negligence.
Compliance with a building code does not establish due care;
compliance is only some evidence of due care.
See Miner v. Long
Island Lighting Co., 40 N.Y.2d 372, 381, 353 N.E.2d 805, 810,
386, N.Y.S.2d 842, 847 (1976), citing Texas & Pac. Ry. Co. v.
Behymer, 189 U.S. 468 (1903) and The T.J. Hooper, 60 F.2d 737 (2d
Cir. 1932).
"[W]hile the absence of such a violation might be
probative of due care, especially where there are specific safety
regulations dealing with the subject matter in issue, e.g.,
indoor stairways subject to extensive building code regulations,
it is hardly dispositive as a matter of law."
Janover v. Ryder
Sys., Inc., 1:05 Civ. 2841 (ENV)(MDG), 2006 WL 2335546 at *2
(E.D.N.Y. Aug. 10, 2006), citing Kellman v. 45 Tiemann Assocs.,
Inc., 87 N.Y.2d 871, 872, 662 N.E.2d 255, 256, 638 N.Y.S.2d 937,
938 (1995), Lamuraglia v. N.Y.C. Transit Auth., 299 A.D.2d 321,
324, 749 N.Y.S.2d 82, 86 (2d Dep't 2002) and Lugo v. LJN Toys,
Ltd., 146 A.D.2d 168, 171, 539 N.Y.S.2d 922, 924 (1st Dep't
1989), aff'd, 75 N.Y.2d 850, 552 N.E.2d 162, 552 N.Y.S.2d 914
(1990); see also Belsinger v. M & M Bowling & Trophy Supplies,
Inc., supra, 108 A.D.3d at 1042, 969 N.Y.S.2d at 646 ("[C]ompliance with such codes does not necessarily preclude a jury from
22
finding that the . . . [step or the entryway] was part of or
contributed to any inherently dangerous condition existing in the
area of [plaintiff's] fall." (internal quotation marks omitted,
first alteration added)).
Because Mr. Nipon here asserts a common law claim of
negligence, compliance with the New York City Building Code is
not dispositive on the issue of liability.
Accordingly, I also
deny summary judgment on the issue of whether defendant maintained its premises in reasonably safe condition.
3.
Notice
The Yale Club next contends that it is entitled to
summary judgment because plaintiffs have not established that it
had notice of the allegedly hazardous nature of the entrance
(Def.'s Mem. at 6).
Here, defendant created the condition at
issue, "rendering irrelevant an inquiry into the usual questions
of notice."
Ohanessian v. Chase Manhattan Realty Leasing Corp.,
supra, 193 A.D.2d at 567, 598 N.Y.S.2d at 204 (internal quotation
marks omitted); accord Cook v. Rezende, 32 N.Y.2d 596, 599, 300
N.E.2d 428, 429, 347 N.Y.S.2d 57, 59 (1973); Jabbour v.
Finnegan's Moving & Warehouse Corp., 299 A.D.2d 192, 192, 749
N.Y.S.2d 531, 532 (1st Dep't 2002).
Notice need be shown only
when the owner did not create the condition.
23
See e.g., Mullin v.
100 Church LLC, 12 A.D.3d 263, 264, 784 N.Y.S.2d 545, 546 (1st
Dep't 2004) ("To establish a prima facie case of negligence in a
slip and fall case, a plaintiff must demonstrate that the defendant created the condition that caused the accident or had actual
or constructive notice of it.").
Because this case involves a
permanent feature of the Yale Club, and there is no evidence that
the premises were altered without the Yale Club's knowledge and
permission, proof of notice is unnecessary.
4.
Causation
Finally, the Yale Club argues that it is entitled to
summary judgment because there is no evidence that Mr. Nipon's
accident was caused by any aspect of the Yale Club's entrance
rather than Mr. Nipon's own inattention (Def.'s Mem. at 5-7).
This argument also fails.
Whether Mr. Nipon was paying
attention to what he was doing and exercising reasonable care for
his own safety when entering the Yale Club is a classic question
of comparative negligence.
See Dillard v. N.Y.C. Hous. Auth.,
112 A.D.3d 504, 505, 977 N.Y.S.2d 226, 227-28 (1st Dep't 2013)
("[T]he evidence does not establish that plaintiff was the sole
proximate cause of her injury, but raises an issue of fact as to
her comparative negligence . . . [because defendant] did not
clear an established pedestrian walkway at all, although it was
24
foreseeable that residents and others would attempt to use it to
exit the premises."
(citations omitted)); Penge v. Bd. of Educ.,
10 A.D.3d 251, 252, 781 N.Y.S.2d 68, 69 (1st Dep't 2004)
("Defen-
dant's argument that the missing handrail on the right side of
the staircase did not proximately cause plaintiff's fall since
plaintiff chose not to use the available left-side handrail is
more appropriately directed to the issue of comparative negligence.").
As a result, it is properly a question for the jury.
See Hazel v. Nika, 40 A.D.3d 430, 431, 836 N.Y.S.2d 573, 574 (1st
Dep't 2007)
always .
("The issue of comparative negligence is 'almost
. a question of fact' and 'almost exclusively a jury
function.'"
(alteration in original)), quoting Wartels v. Cnty.
Asphalt, Inc., 29 N.Y.2d 372, 379, 278 N.E.2d 627, 631, 328
N.Y.S.2d 410, 416 (1972).
IV.
Conclusion
Accordingly, for all the foregoing reasons,
I deny
defendant's motion for summary judgment in all respects.
Dated:
New York, New York
November 18, 2014
SO ORDERED
HENRY PITMAN
United States Magistrate Judge
25
Copies mailed to:
Christopher C. Fallon, Jr., Esq.
Martin P. Duffey, Esq.
Cozen O'Connor P.C.
1900 Market Street
The Atrium
Philadelphia, Pennsylvania 19103
David Weiser, Esq.
Law Office of Vincent P. Crisci
17 State Street
8th Floor
New York, New York 10004
26
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