The opinion of the court was delivered by: Smith, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Subdivision two of Multiple Dwelling Law § 37 requires, as a general rule, that owners of apartment buildings keep lights on all night in certain public areas. The same subdivision says that if a light "becomes extinguished and remains so without the knowledge or consent of the owner he shall not be liable." Subdivision three of the statute makes an exception to the general rule of subdivision two, requiring lights in windowless areas to "be kept burning continuously." We hold in this case that the "knowledge or consent" defense created by subdivision two may be asserted in a case based on an alleged violation of subdivision three.
The blackout of August 14, 2003 left many commuters stranded in New York City overnight. Plaintiff was one of them, and she stayed that night in the fourth floor apartment of a co-worker in a building owned by defendants. The building was not one of those required by the New York City Administrative Code to have lighting connected to an emergency power source (see Administrative Code of City of NY § 27-382). The building did have backup, battery-operated lights, but the batteries lasted no more than 40 minutes. By the time plaintiff arrived at the building on the evening of August 14, the lights were out. The building staff had put flashlights and candles on the staircases, and staff members using flashlights escorted building occupants, including plaintiff and her host, up the fire stairs.
The lights were still out when plaintiff was ready to leave the building the next morning. Neither she nor her host had a flashlight, and neither called down to the lobby for help. Plaintiff stood in the hallway outside her host's apartment and opened the door to the fire stairs, where she could see nothing. She put out her foot to feel for a landing, fell down the stairs and was injured.
Plaintiff brings this negligence action against the building owners. The principal basis for the action, and the only one that requires discussion, is her assertion that defendants were guilty of negligence per se because they violated the requirement of Multiple Dwelling Law § 37 (3) that "[e]very light in every fire-stair . . . shall be kept burning continuously."
Supreme Court denied defendants' motion for summary judgment, and the Appellate Division, with two Justices dissenting, affirmed. The Appellate Division concluded that section 37 (3) "does not relieve an owner of responsibility for lights extinguished without its knowledge or consent, but rather commands categorically that every light in a windowless fire-stair 'shall be kept burning continuously'" (Kopsachilis v 130 East 18 Owners Corp., 43 AD3d 744, 745 [1st Dept 2007]). The dissenters' view was that the statute did not impose "absolute liability," and that defendants were entitled to assert a "knowledge or consent" defense (id. at 747).
The Appellate Division granted leave to appeal to this Court, and we now reverse.
Multiple Dwelling Law § 37 is best understood by reading its first three subdivisions in full:
"1. In every multiple dwelling the owner shall provide a light or lights, each of at least sixty watts incandescent or twenty watts cool white fluorescent or equivalent illumination, for every vestibule and entrance hall in every public hall, stair, fire-stair and fire-tower on every floor. Said light or lights shall be located as prescribed by the department, but, in every stair, fire-stair or fire-tower, shall be so located that every part thereof shall be lighted.
"2. Except as provided in subdivision three, every such light shall be turned on by the owner at sunset every day and shall not be turned off by the owner until the following sunrise. Every such light shall be kept burning daily from sunset until sunrise, but if it becomes extinguished and remains so without the knowledge or consent of the owner he shall not be liable. The burden shall be upon the owner to show that the light became and remained extinguished without his knowledge or consent.
"3. Every light in every fire-stair and fire-tower at every story, and in every stair and public hall at every story where there is no window opening to the outer air, shall be kept burning continuously except that this provision shall not apply to public halls lighted ...