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Touri v. Zhagui

March 5, 2010

THOMAS D. TOURI, PLAINTIFF,
v.
JULIO CESAR ZHAGUI AND ONE WAY PROPERTIES, LLC, DEFENDANTS.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

Opinion & Order

Thomas D. Touri ("Touri" or "Plaintiff"), a police officer for the Village of Port Chester, New York and a resident of Connecticut, seeks damages for injuries he suffered when he fell at a property owned by One Way Properties, LLC ("One Way" or "Defendant") while arresting Julio Cesar Zhagui ("Zhagui"). Touri alleges that his fall was caused by One Way's failure to provide adequate lighting in the stairwell, in violation of tort duties and General Municipal Law § 205-e. Zhagui, who was served with process, has not appeared in this action and is presently in default. The parties have cross-moved for summary judgment. Jurisdiction, which is not contested, is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. For the following reasons, both motions are denied.*fn1

I. Factual Background

A. The Underlying Incident

At about 8:00 p.m. on February 26, 2003, at a three-story house located at 242 Westchester Avenue in Port Chester, New York (the "Premises"), Touri arrested Zhagui in connection with an alleged domestic violence incident. Zhagui was handcuffed with his arms behind his back and was on Touri's right side as they walked down the three flights of stairs to exit the Premises. (Pl. Ex. H, at 33:7--18).

Touri alleges that there was little to no lighting in the Premises. Specifically, he claims that while every landing had a light fixture and a light switch, the lights did not work. (Id. at 29:4--16). Touri claims that on the first floor there were approximately four to five switches on the wall plate, which was hanging out, exposing "old and frayed" wires. (Id. at 25:3-8). He tried each of these switches to no avail. (Def. Ex. E, at 20:6-14). As a result of these conditions, Touri claims he had to hold out a flashlight with his left hand to see his way down the staircase, while using his right hand to hold onto Zhagui's arm. (Pl. Ex. H, at 33:19-34:2). According to Touri, while he did not recall seeing a handrail, he could not have used it even if it was there because both of his hands were occupied. (Id. at 33:10-11).

Touri claims Zhagui "was uncooperative and tried to free himself from [Touri's grasp]" as they walked down the stairwell. (Second Am. Compl., at 3). On the flight of stairs between the first and second floors, Zhagui "began to flare his body back and forth . . . [and] pushed [Touri] off balance." (Pl. Ex. H, at 34:15-19). Touri attempted to hold onto the wall to regain his balance, but Zhagui nudged him with his shoulder (Id. at 36:16-18), causing Touri to fall four steps with Zhagui landing on top of him. (Id. at 34:20-25). Touri claims to have suffered permanent and career-ending injuries as a result of this incident.

B. Alleged Housing Violations at the Premises

Leonard Cannavo ("Leonard") and Joseph Cannavo ("Joseph") are self-described "members" of One Way, a real estate corporation organized in New York and the owner of the Premises. As members, both men were responsible for inspecting the Premises. Leonard testified that he inspected the Premises about once a week throughout 2003 (Def. Ex. B, at 11:9). During the inspections, typically he would "look at the upkeep, make sure there was no garbage around, collect any overdue rents, [and] make sure everything was nice and tight." (Id. at 11:16-- 19). Joseph testified that he inspected the Premises about twice a month (Def. Ex. C, at 11:2--3), during which he would "walk the perimeter and common area of the house" to inspect the Premises. (Id. at 10:21--22). No records of their alleged inspections were kept. (Def. Ex. B, at 11:20--23; Def. Ex. C, at 11:4--6). Neither was aware of any problems with the lighting or electrical system at the Premises. (Def. Ex. B, at 22:23--23:6; Def. Ex. C, at 10:8--10).

Touri alleges that, at the time of his fall, One Way was in violation of the following provisions of the Housing Standards Code of the Village of Port Chester: (1) § 197--12.D, in that the stairs and railings of the Premises were not free from defects; (2) § 197--14.F, in that the electrical wiring and devices of the Premises were not properly maintained and posed a threat of ignition or electrical hazard; (3) § 197--16.B, in that not all non-habitable spaces of the Premises had adequate natural or artificial lighting available at all times; and (4) § 197--16.D, in that the stairwell of the Premises was not supplied with natural light or lighting facilities at all times.

He also claims that One Way violated § 37 of the New York Municipal Dwelling Law, in that lighting was not provided in the stairwell of the Premises.

On March 3, 2003, the Port Chester Police Department sent a referral slip to the Village of Port Chester Department of Buildings ("DOB"), reporting that no hallway lights were working in the stairwell of the Premises. Frank Ruccolo of DOB called Joseph Cannavo that day and instructed him to install new light bulbs. Ruccolo visited the Premises the next day, March 4, 2003, and found that all the lights worked. (Def. Ex. D). Prior to this incident, DOB did not have on file any violations or notices issued to One Way regarding any problems related to the lighting or the electrical system of the Premises.

C. The Instant Action

On February 1, 2006, Touri commenced the instant action. In his Second Amended Complaint, filed November 15, 2006, Touri asserts claims against One Way for common law negligence and violation of General Municipal Law § 205-e, seeking a judgment of joint and several liability and damages in an amount to be determined by this Court. One Way moves for summary judgment on both claims, arguing that it did not have actual or constructive notice of the alleged lighting condition and that Zhagui's conduct was the sole proximate cause of Touri's accident. On the General Municipal Law § 205-e claim, One Way further argues that there is no evidence that One Way violated any code or ordinance. Touri cross-moves for summary judgment on the ...


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