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Barone v. Luongo

September 11, 2007


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff Dominick Barone ("Barone") brings this action against defendants John and Marie Luongo (collectively, "the Luongos"), husband and wife, alleging that defendants negligently constructed steps leading out from the side entrance of their former residential property, causing plaintiff to trip and fall four days after plaintiff took title of defendants' residential property. Plaintiff seeks damages*fn1 , costs, and attorney's fees. Presently before the Court is defendants' motion seeking reconsideration of this Court's ruling on June 28, 2007, denying defendants' motion for summary judgment.*fn2 For the reasons set forth below, the defendants' motion for reconsideration is denied.


The following facts are taken from the Complaint, the submissions of the parties in connection with this motion and defendants' earlier motion for summary judgment, and the transcript of the oral argument heard on June 28, 2007. Factual disputes between the parties are noted.

Plaintiff Barone is domiciled in Staten Island, Richmond County, in the State of New York. Defendants John and Marie Luongo are domiciled in Marlboro, Monmouth County, in the State of New Jersey. Accordingly, this Court has diversity jurisdiction under 28 U.S.C. § 1332 because the parties are citizens of different states and the amount in controversy exceeds $75,000.

Defendants John and Marie Luongo owned residential property at 65 Roma Avenue, Staten Island, New York from 1961 until October 2004. Defendant John Luongo was born in 1930 and retired from law enforcement in 1992. Plaintiff Barone lived on the same street as the Luongos when he was a child. In 1998 or 1999, defendant John Luongo, with his wife's assistance, installed a wooden exterior staircase on the side of the house at 65 Roma Avenue. The staircase replaced concrete steps that were previously attached to the house. The wooden staircase consists of a platform with two sets of steps, one set of steps leading towards the front of the property and one set of steps leading towards the back of the property. Defendant John Luongo testified in his deposition that he did not have training in home improvement or contracting. John Luongo Dep., p. 7. He had not installed a staircase before. Id. at p. 20. In preparation for the installation, John Luongo bought a "how-to-do-it book," or home improvement manual, at a hardware store. Id. at p. 22. Defendant John Luongo also consulted with Louis Pate ("Pate"), an experienced builder who built the Luongos' home, regarding how to build an exterior staircase. Id. at p. 23. Pate informed John Luongo that the height of the steps' risers should be at least eight inches and each step, or "tread," should "come out" about ten inches. Id. at p. 34. John Luongo did not prepare any drawings of the staircase he intended to build prior to building it. He did not consult with a building engineer or architect, id. at p. 23, nor did he review any provisions of the New York City building code prior to building the staircase. Id. at p. 33. He did not consult with anyone regarding the building code requirements for the height of the risers and the width and depth of the steps. When he purchased pre-cut wood for building the steps from a hardware store, defendant John Luongo did not inform the hardware store representatives about the height of the side door entrance from the ground. Id. at p. 36. He did not consult with anyone about the proper height of the steps' railing. Id. at p. 54.

In September 2004, Plaintiff signed a contract to purchase the property at 65 Roma Avenue from the Luongos. Barone Dep., p. 9. The closing of title occurred on October 6, 2004. Plaintiff had visited the premises once before signing the purchasing contract and on the day before the closing of title. Id. at p. 9. Except for normal wear and tear, defendant John Luongo contends that the side exterior steps were in the same condition on the date of sale to plaintiff as they were when John Luongo installed them. Def.'s Rule 56.1 Statement ¶ 9 (citing John Luongo Dep., p. 43).

Plaintiff states that on the morning of October 10, 2004, he went to the premises "to do some interior painting before moving in." Barone Affidavit ¶ 3. At approximately 10:30 a.m., he used the staircase for the first time. As he moved to descend the steps going towards the front of the property, plaintiff put his left foot forward towards the first step. When the back of his left foot hit the first tread, his ankle twisted and snapped. He fell down the stairs on his back. Barone Dep., p. 25-26. Plaintiff states that the top step leading from the platform towards the front of property, the step on which plaintiff had placed his left heel when he fell, is abnormal. It is "like a baby step." Id. at p. 27. See Def. Exh. C, Photograph of Exterior Side Steps.*fn3

Defendant John Luongo states that he has no knowledge of other individuals having problems descending the exterior staircase. John Luongo Dep., p. 49-50. No one had previously commented to John Luongo that the height and width of the first step was smaller than the height and width of the other steps. Id. at p. 50.

On March 21, 2005, Steven L. Carroll ("Carroll"), a professional engineer, inspected the side entrance staircase of 65 Roma Avenue. Carroll found that the first tread down from the top of the staircase measures nine inches in width instead of 10.75 inches, as required by the local building code. Plaintiff's Exh. 1, Caroll Affidavit ¶ 6. Carroll also found that the total length of the top riser (measuring 5.5 inches), the second riser (measuring 6.75 inches), and the top tread was 21.25 inches, which is lower than the length of 24 inches required under the New York City building code. Id. ¶ 7. Moreover, Carroll determined, the riser heights and tread widths were not constant as required and the height of the handrail exceeded code requirements by 6 inches. The material used did not produce a non-skid surface. Id. Carroll opined that the plaintiff's fall and consequent injuries were, to a reasonable degree of certainty, caused by the code violations in the staircase's construction. Plaintiff's Rule 56.1 Statement ¶ 8.

On June 28, 2007, I heard oral argument from both parties on defendants' motion for summary judgment. I denied defendants' motion for summary judgment in open court. For the reasons stated below, defendants' motion for reconsideration is denied.


Standard for Motion for Reconsideration

A motion for reconsideration pursuant to either Rule 59(e) of the Federal Rules of Civil Procedure or Local Rule 6.3 will be granted if the moving party presents factual matters or controlling decisions the court overlooked that might materially have influenced its decision.*fn4 Pereira v. Aetna Casualty and Surety Co. (In re Payroll Express Corp.), 921 F.Supp. 1121, 1123 (S.D.N.Y. 1996); Violette v. Armonk Assocs., L.P., 823 F.Supp. 224, 226 (S.D.N.Y. 1993). Reconsideration is also appropriate if there is an intervening change of controlling law, new evidence, or the need to correct a clear error or prevent manifest injustice. Doe v. New ...

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