Sussman v MK LCP Rye LLC

Summary

The Appellate Division, First Department, affirmed the denial of defendants’ motion for summary judgment in a premises-liability action arising from the plaintiff’s fall in a hotel stairwell. The court held that evidence concerning a guardrail’s noncompliance with NFPA No. 101 raised an issue of fact regarding negligence and that defendants had not established the absence of constructive notice. The court dismissed as academic defendants’ appeal from the order adhering to the original determination upon reargument.

Holdings

1. Plaintiff raised a triable issue of fact by submitting an expert affidavit providing concrete proof that NFPA No. 101 applied at the relevant time and that the stairwell guardrail was materially below the advocated 42-inch height. A violation of a standard applicable by reference in the building code, even if not incorporated as a mandatory code provision, may constitute some evidence of negligence and may establish a standard of care.
2. Defendants failed to establish prima facie that they lacked constructive notice of the dangerous or defective condition or that they did not breach their common-law duty of care. Compliance with applicable building codes was not dispositive of common-law negligence, and the guardrail's inadequate height was apparent and existed long enough for defendants to discover and remedy it.
3. Plaintiff's inability to identify the precise cause of his slip or trip was not fatal to his claims because evidence supported his contention that the lack of a 42-inch guardrail was a proximate cause of his injuries. An accident may have more than one proximate cause.
4. The appeal from the order entered upon reargument was dismissed as academic because the court affirmed the original order denying summary judgment.

Questions Presented

1. Whether defendants established prima facie entitlement to summary judgment by showing that the hotel stairwell was in a reasonably safe condition.
2. Whether plaintiff raised a triable issue of fact by submitting expert evidence that the stairwell violated NFPA No. 101 and that the guardrail's inadequate height constituted evidence of negligence or a standard of care.
3. Whether defendants established that they lacked constructive notice of the allegedly dangerous or defective guardrail condition.
4. Whether plaintiff's inability to identify the precise cause of his slip or trip defeated his negligence claim.
5. Whether the appeal from the order adhering to the original determination upon reargument was academic.

Disposition

affirmed