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Bouima v. Dacomi

July 7, 2010


Appeals from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered July 24, 2008, and a judgment of the same court entered October 6, 2008. The order denied a motion by defendant 481 Realty Corp. to, among other things, set aside a jury verdict and grant judgment in favor of said defendant, or grant a new trial or, in the alternative, grant a new trial as to damages unless plaintiff stipulated to a substantial reduction in the jury's award. The judgment, entered upon a jury verdict awarding plaintiff the sum of $300,000 for past pain and suffering, $1,500,000 for future pain and suffering, $25,000 for past medical expenses, and $80,000 for future medical expenses, and apportioning liability 9% to defendant Dacomi, Inc., 9% to defendant Michael Coert, 2% to plaintiff, and 80% to defendant 481 Realty Corp., among other things, awarded plaintiff the principal sum of $1,822,926 against defendant 481 Realty Corp.

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 printed Miscellaneous Reports.


ORDERED that the appeal from the order entered July 21, 2008 is dismissed; and it is further,

ORDERED that the judgment is reversed without costs, the order dated July 21, 2008 is vacated, and the motion by defendant 481 Realty Corp. to, among other things, set aside the jury verdict is granted to the extent of ordering a new trial on the issues of apportionment of liability and damages.

The appeal from the order dated July 21, 2008 must be dismissed, as the right of direct appeal from an intermediate order terminates upon the entry of judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the final judgment (see CPLR 5501 [a] [1]). Plaintiff Saliha Bouima brought this action to recover for injuries she sustained on March 31, 1998 when she fell from an unsecured ladder in a unit of a building owned by defendant 481 Realty Corp. (481 Realty) and leased to defendant Dacomi, Inc. (Dacomi). Defendants Davy T'Hoen and Michael Coert were the principals of Dacomi. T'Hoen signed the lease for the unit on behalf of Dacomi. The lease went into effect on February 23, 1998. T'Hoen hired plaintiff to work in the leased premises as Dacomi's receptionist and office manager, beginning March 1, 1998. T'Hoen offered, and Bouima agreed, that for $500 a month, which would be deducted from her salary, Bouima could also live in the leased premises. T'Hoen and Coert also resided in the premises.

Although the building was subject to a commercial certificate of occupancy, at the time of the lease to Dacomi, the leased premises contained a full kitchen, a full bathroom with a shower, and an area that appeared to be a living room, as well as office space. With the knowledge and approval of 481 Realty, but without a building permit, the prior tenant had installed in the leased premises two built-in twelve-foot-high structures that were each divided horizontally into two compartments. Plaintiff's bedroom consisted of the upper compartment of one of the structures, and was a small space which was provided to her furnished with a mattress, shelves and a light. The only means of ingress and egress to this area was through an opening in the wall that was 46 inches wide and 561/2 inches high; its sill was approximately eight feet above the floor of the premises, and it was only accessible by means of an unsecured straight wooden ladder which did not have rubber feet. Plaintiff moved in on March 1, 1998.

Almost immediately after she moved in, plaintiff began looking for a new job and a different abode. Plaintiff testified that during the month that she had lived in the leased premises, she complained to T'Hoen about the ladder, and that T'Hoen had replaced the original ladder with a second ladder which was also wooden, unsecured, and without rubber feet. The evidence indicated that the second ladder was missing a rung.

On March 31, 1998, having procured different accommodations, plaintiff was in the process of moving out of the premises. As she descended the ladder with items in one hand, the ladder moved and plaintiff fell. She dislocated her left ankle, broke and displaced her left fibula and the end part of her tibia, and suffered soft tissue injuries.

The only defendant that appeared and defended at trial was 481 Realty. Testifying for 481 Realty, Gary Krim, who managed the building, referred to the provision of the lease whereunder Dacomi, as tenant, represented that the leased premises would be used exclusively for non-manufacturing commercial use and that it would not sublet the premises or any portion thereof. While admitting that the prior tenant of the premises had requested and received permission to erect the structure in which plaintiff's bedroom was located, for use as a sound studio, Krim denied ever having visited the premises for any purpose after the structure was erected, until after 481 Realty was sued by plaintiff, denied any knowledge of the kitchen in the premises or of the potential combined commercial and residential use of the premises, and denied having seen plaintiff's name on the mailbox for the premises.

Robert Grunes, a professional engineer, testified on behalf of plaintiff. His inspection of the premises in June 2005 disclosed conditions consistent with photographs of the premises taken at the time of the accident. The presence of a kitchen with sinks, cabinets, and a table, of a full bathroom, and of an apparent living room, as well as a work area, indicated to him that the premises were being used, at least in part, for residential purposes. Grunes also inspected the structure in which plaintiff's bedroom had been located. He stated that this was a permanent structure made of sheetrock over lumber, affixed to the wall and containing two levels: one common with the floor of the apartment, and another elevated level that was accessible only by an unsecured ladder with wooden feet. He described the upper level as constituting a mezzanine floor within the meaning of the New York City Building Code (Administrative Code of the City of New York) § 27-232. Based on his inspection, Grunes concluded that the fundamental reason for the accident was that the ladder was not secure, and that, regardless of the use of the premises, it constituted a significant structural or design defect to erect a floor that was only accessible by an unattached ladder.

Grunes indicated that 481 Realty, as owner, was chargeable with knowledge of how the leased premises were used, especially since their partial residential use was obvious at the time when the prior tenant left, since a sketch of the alteration to the premises had been attached to Dacomi's lease, and since plaintiff's name was on the doorbell. He stated that it is the owner's obligation to assure compliance with the Building Code, and the safe maintenance of its buildings, citing Administrative Code § 27-128. Grunes identified a number of provisions of the New York City Building Code which, he contended, 481 Realty had violated with respect to the premises. These included having allowed the prior tenant to erect a permanent structure without obtaining a permit, which permit he stated was required because the erection of the structure and the use thereof constituted a change in occupancy or use, citing Administrative Code §§ 27-113, 27-118, and having permitted the erection of a mezzanine floor which did not have an "exit facility" or "access stairs," citing Administrative Code §§ 27-232, 27-357, 27-367. Moreover, Grunes stated, because the erection of the structure created an additional floor, a permit was required, and 481 Realty, as the building owner, was the party responsible for obtaining an application for a permit, citing Administrative Code § 27-151.

On appeal, 481 Realty contends that the action should have been dismissed against it because, as an out-of-possession landlord that had relinquished control of the premises and that had no obligation under the terms of the lease to maintain the premises, it was not liable for injuries that occurred on the premises. However, as the Appellate Division previously noted, because the lease contained a reservation of the owner's right of entry, there existed a "triable issue of fact as to whether the alleged dangerous condition constituted a violation of Administrative Code of the City of New York § 27-357 and a significant structural or design defect" (Bouima v Dacomi, Inc., 36 AD3d 739, 740 [2007]). That decision was sufficiently broad so that proof of another violation of the Administrative Code, apart from § 27-357 and a significant structural design defect, could also support liability against 481 Realty.

Grunes was properly qualified as an expert engineer with extensive knowledge of the Building Code (see Manning v Atlas Tr. Mix Corp., 254 AD2d 336 [1998]). His testimony adequately established the existence of a specific statutory violation and a significant structural or design defect to support ...

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