G. CHRISTOPHER ACTON, Individually and as Administrator of the Estate of MARY THERESA GALVIN ACTON, Deceased, Appellant,
1906 RESTAURANT CORP. et al., Respondents.
Calendar Date: January 11, 2017
Mainetti, Mainetti & O'Connor, PC, Kingston (John T.
Casey of counsel), for appellant.
& Mack LLP, Poughkeepsie (Betsy N. Abraham of counsel),
Before: McCarthy, J.P., Garry, Lynch, Rose and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Meddaugh, J.), entered
February 5, 2016 in Sullivan County, which, among other
things, granted defendants' motion for summary judgment
dismissing the complaint.
Theresa Galvin Acton (hereinafter decedent) sustained fatal
injuries from an unwitnessed fall down an interior stairway
at defendants' restaurant. From the dining area of the
restaurant, an unlocked and unmarked doorway opened over the
stairs, which descended into a basement employee area.
decedent's husband, commenced this premises liability
action - individually and on behalf of decedent's estate
- against defendant 1906 Restaurant Corp. and its owners,
defendant Robert DeCristofaro (hereinafter DeCristofaro) and
defendant Rosemarie DeCristofaro. Thereafter, defendants
moved for, among other things, summary judgment dismissing
the complaint. Supreme Court granted defendants' motion
for summary judgment and dismissed plaintiff's complaint
finding that, while there were triable issues of fact
regarding defendants' duty and breach, plaintiff's
inability to explain the cause of decedent's fall would
require a jury to impermissibly speculate as to proximate
cause . Plaintiff appeals.
are not liable for decedent's fall if they
"maintained the premises in a reasonably safe condition
and neither created nor had actual or constructive notice of
any allegedly dangerous condition" (Carter v State
of New York, 119 A.D.3d 1198, 1199  [internal
quotation marks and citations omitted]; see Murphy v
Hometown Real Estate, 132 A.D.3d 1126, 1127 ).
Likewise, defendants are not liable if the conclusion that
defendants' negligence was the proximate cause of
decedent's fall would be based on pure speculation
(see Pascucci v MPM Real Estate, LLC, 128 A.D.3d
1206, 1206 ; Ash v City of New York, 109
A.D.3d 854, 855 ). In contrast to such speculation,
proximate cause can properly be based on logical inferences
from circumstantial evidence (see Pascucci v MPM Real
Estate, LLC, 128 A.D.3d at 1206; see e.g. Griffin v
Sadauskas, 14 A.D.3d 930, 931 ). Finally, this
Court has repeatedly found that "it is a matter of
'[s]imple logic' [that] a door swinging over steps
may create a 'hazardous and unsafe' condition"
(Griffin v Sadauskas, 14 A.D.3d at 930, quoting
Burton v State of New York, 90 A.D.2d 585, 586
support of their motion, defendants offered the deposition
testimony of DeCristofaro. He acknowledged that he frequently
used the stairway in question, that the stairs were original
and installed in 1906, that the stairs were worn and that
there was no nonslip adhesive installed on the stairs.
Although the stairway led to a basement storage area intended
for access only by employees, he acknowledged that there was
no signage on the door at the top of the stairway restricting
access. Moreover, the deposition of the individual who was
dining with decedent prior to the accident established that
decedent was a "very active, very agile"
59-year-old woman. Decedent's dinner companion explained
that, at the end of their meal at the restaurant, decedent
left the table and that, shortly thereafter, the companion
heard decedent fall down the stairs. Although defendants'
proof established that decedent had consumed alcohol prior to
the accident - three alcoholic beverages over the course of
an hour-long happy hour and the subsequent dinner at the
restaurant - DeCristofaro, who observed decedent before the
accident, testified that she did not appear to be
we assume that defendants' submissions satisfied their
initial burden, plaintiff's submissions raised material
issues of fact requiring a trial. Photographs of the stairway
that plaintiff submitted established that the door that
decedent entered opened away from her and that, when opened,
it cleared a short interior landing and went over the
descending steps. The steps are wooden and visibly bowed and
worn. Plaintiff also submitted the affidavit of a licensed
architect who opined that the stairway had deteriorated stair
treads, improper riser height and tread depths, an
ungraspable handrail and an interior landing that was too
short inasmuch as that the door opened over the stairs. The
architect concluded, to a reasonable degree of professional
certainty, that the dangerous condition of the staircase
caused decedent's fall. Moreover, plaintiff submitted the
affidavit of a person who had worked for the restaurant for
about a year who averred to having fallen on the subject
stairs "at least two or three times."
the evidence in the light most favorable to plaintiff and
affording him the benefit of every favorable inference
(see Commissioners of the State Ins. Fund v BSB Constr.,
Inc., 144 A.D.3d 1236, 1237-1238 ), material
issues of fact exist requiring a trial. The evidence
established numerous questions of fact as to whether the
staircase presented a dangerous condition to those using it,
the most obvious being that the door opened over descending
stairs (see Griffin v Sadauskas, 14 A.D.3d at 931;
Hanley v Affronti, 278 A.D.2d 868, 869 ;
Burton v State of New York, 90 A.D.2d at 586).
DeCristofaro's regular use of the stairs and his personal
installation of the handrail established a question of fact
as to notice or creation of the dangerous condition (see
Sawyers v Troisi, 95 A.D.3d 1293, 1294 ;
Hanley v Affronti, 278 A.D.2d at 869). Finally,
although the fall was unwitnessed, a jury could logically
infer from the evidence regarding the risks that the
staircase posed, the evidence of previous falls on the
staircase and the evidence that decedent was healthy, agile
and not visibly intoxicated at the time of the accident that
the dangerous condition of the staircase caused her fall
(see Griffin v Sadauskas, 14 A.D.3d at 931; see
generally Pipp v Guthrie Clinic, Ltd., 80 A.D.3d 1014,
1016 ). Accordingly, defendants were not entitled to
summary judgment dismissing the complaint.
Lynch, Rose and Aarons, JJ., concur.
that the order is modified, on the law, with costs to
plaintiff, by reversing so much thereof as granted
defendants' motion for summary judgment dismissing the