This decision has been referenced in a table in the New York Supplement.
Richard J. Katz, Esq., Richard J. Katz, LLP, New York, for plaintiff.
Patricia A. Hughes, Esq., Cartafalsa, Slattery et al., Tarrytown, for defendant.
BARBARA JAFFE, J.
By amended notice of motion dated June 28, 2012, defendant SNYT LLC i/s/h/a Supernova New York Realty LLC moves pursuant to CPLR 3212 for an order summarily dismissing the complaint against it. Plaintiff opposes.
I. PERTINENT BACKGROUND
On March 5, 2009, at approximately 6:00 p.m., plaintiff, a guest at the Sheraton Hotel and Towers at 801 Seventh Avenue in Manhattan (the hotel), was returning to the hotel when he allegedly tripped on the stairs ascending to the landing leading to the hotel doors, causing him to sustain injuries. (Affirmation of Patricia A. Hughes, Esq., dated June 25, 2012 [Hughes Aff.], Exhs. D, E). The hotel premises are owned by defendant. ( Id., Exh. B).
At a deposition held on March 28, 2012, plaintiff testified that he fell on the second step from the top when the front of his boot became caught in a space where two pieces of granite joined; the two pieces had a height differential of approximately one-half inch. Plaintiff did not use the handrail although he had used the stairs approximately 12 times prior to his fall without complaint. (Hughes Aff., Exh. E).
George Irizarry, the hotel's security officer on duty at the time of the incident, testified at his deposition on April 24, 2012 that to his knowledge, there had been no prior incident of anyone falling on the steps due to any defect related to the step on which plaintiff allegedly fell. ( Id., Exh. F).
By affidavit dated September 8, 2012, Dr. Stephen I. Rosen, plaintiff's expert witness in the fields of human factors and slip, trip and fall analysis, states that he examined the defect and accident site, and observed that the height differential between the two granite slabs is apparent both in photographs and in person, and appeared unchanged from the date of the accident. In his professional opinion, the defect is the type that can cause a person to catch his foot or shoe and fall, as plaintiff did. He also saw that the defect is located in a heavily trafficked area, which is not particularly well-lit, making its observation or detection difficult, and concludes that defendant failed to maintain its property in a safe condition in violation of sections 27-127 and 27-128 of the New York City Building Code, and Article 1, Section 27-2005 of the Housing Maintenance Code of the City of New York. (Affirmation of Richard J. Katz, Esq., dated Sept. 23, 2010 [Katz Aff.], Exh. G).
Defendant contends that the alleged defect is trivial, that no reasonable person would foresee it as a hazard, and that plaintiff has offers no evidence that the alleged defect presents a foreseeable hazard. (Mem. of Law, dated June 25, 2012).
Plaintiff argues that there exist genuine issues of material fact as to defendant's negligence in failing to maintain the steps properly, relying on Rosen's expert opinion that defendant violated applicable safety codes. He asserts that defendant's contention that the defect was trivial is insufficient absent an expert opinion, and that the defect's height differential is not the only measure; rather, all relevant factors must be considered, including that the accident's locus in a high traffic area which was poorly illuminated, and that plaintiff did not see what caused his fall until after the accident. (Katz Aff.).
In reply, defendant maintains that Rosen never inspected the step and that his affidavit simply repeats plaintiff's testimony. It also asserts that the premises, including the stairs, are properly maintained, and that there is no evidence supporting plaintiff's allegation that it violated the building code. Defendant also denies that the area is poorly lit, and observes that ...