This case is not published in a printed volume and its disposition appears in a table in the reporter.
Thomas P. Aliotta, J.
Upon the foregoing papers, the motion of defendant the City of New York for summary judgment and dismissal of the complaint is denied.
In this personal injury action, plaintiff Christine Brown claims that on November 22, 2002 she tripped and fell due to the allegedly hazardous condition of the exterior steps of the front entrance of the Elias Bernstein Intermediate School, located at 1270 Huguenot Avenue in Staten Island, New York. It is undisputed that said premises are owned by the City of New York (hereinafter the "City"). According to plaintiff, the specific defect that is claimed to have caused her injury is the "uneven risers of improper height" existing on the first step leading up to the main entrance of the school.
In moving to dismiss the complaint, the City maintains that plaintiff has sued the wrong legal entity, as the building is claimed to be the property of the Board of Education of the City School District of the City of New York, also known as the Department of Education (hereinafter the "Board of Education"), an independent body corporate, that is separate and legally distinct from the City ( see Education Law 2551 ). According to the City, pursuant to Education Law §§2554(4), 2590-h(17) and New York City Charter 521, the Board of Education and its Chancellor have been delegated certain duties, including the care, custody, control and safekeeping of school property. Moreover, it is claimed that 521(b) of the Charter further provides that lawsuits in relation to such property are to be brought in the name of the Board of Education. Based on the foregoing, the City contends that any cause of action relating to the care, maintenance or safekeeping of school property must be brought in the name of the Board of Education.
By way of background, the City notes that although various provisions of the Education Law relating solely to the governance of the New York City School District were amended by Chapter 91 of the Laws of 2002, effective July 1, 2002 , such reforms did not alter the allocation of legal responsibility for tort claims against the Board of Education. In view of the foregoing, the City claims that the Board of Education continues to be the appropriate legal entity potentially liable in tort for injuries arising in or upon school premises.
In opposing defendant's motion to dismiss, plaintiff maintains that as the owner of the subject property, the City is responsible, as a matter of law, for the structural defect that caused the plaintiff's accident. In support, plaintiff submits the affidavit of Stanley H. Fein, a licensed professional engineer, who attests that he inspected the exterior stairs to the Elias Bernstein Intermediate School, and was able to analyze the manner in which the accident occurred in relation to the "step geometry" of the subject stairway. According to this expert, the bottom step of the stairway has an excessively high riser height which creates a tripping hazard. He also notes that a "modification" was apparently made to this stairway where approximately 1 to 1 inches of concrete was placed underneath the bottom step in order to make it level with the sidewalk. He opines that this occurred during an improper renovation or repair, and that the uneven and dangerous condition about which plaintiff complains was the result. Mr. Fein further attests that the improper and uneven step geometry of the subject stairway contravenes good and accepted engineering safety practices, as well as violating sections 27-376 and 27-375(e) of the New York City Building Construction Code. In addition, he notes that the distance between the handrails exceeds the requirements of sections 27-376 and 27-375(f) of the New York City Building Construction Code. Thus, Mr. Fein concludes that the subject stairway was improperly built or altered.
In the opinion of this Court, although the 2002 amendments to the Education Law, (L 2002, ch 91) provided for greater mayoral control over education, and significantly limited the power of the Board of Education ( see Assembly Memorandum in Support, 2002 McKinney's Session Laws of NY, at 1716-17170), the City and the Board remained separate legal entities (see Perez v City of New York, 41 A.D.3d 378, 379). According to that Court, "[t]he legislative changes [did] not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts" (id. at 379).
Notwithstanding the foregoing, the City, as the owner of the subject premises, has failed to meet its burden of demonstrating that it may not be held liable for injuries arising from the alleged structural defect and/or statutory violations. In this regard, it is well established that an out-of-possession owner is liable for injuries sustained upon the leased premises if it (1) is contractually obligated to make repairs and/or maintain the premises or (2) has retained the right to re-enter to make repairs and the injuries were proximately caused by a statutory violation or structural defect at the subject premises (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559; Richardson v Yasuda Bank Trust Co. [USA], 5 A.D.3d 458).
On this seminal issue, the City argues that as the out-of-possession owner of the subject school building, it is not liable for negligence with respect to the alleged structural defects in view of the statutory transfer of "the care and control" of school property to the Board of Education ( see New York City Charter 521 [b]), as well as the absence of any lease, statute or regulation obligating the City to maintain the subject premises or to make repairs. The City also denies that it has any contractual right to re-enter and inspect the property, thereby negating any potential for liability for significant structural defects and/or statutory violations.
In the opinion of this Court, the City's bare, unsupported denial, e.g., of a right to re-enter is legally insufficient to establish its entitlement to judgment as a matter of law ( see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851). Moreover, the City has failed to establish that it did not affirmatively create the dangerous condition which allegedly caused plaintiff's accident (cf. Goldes v City of New York, 19 A.D.3d 448, 449).
Accordingly, it is
ORDERED, that the motion to dismiss the complaint by defendant the City of New York on the ground that it is not a ...