KATHLEEN CERRO,                                                                                                                                                                                                                                                                                     Case Nos.

                                                                Plaintiff-Respondent,                 99-10828


                  -- against --                                                                                                              

                                                                                                                   Supreme Court

                                                                                                                                   Suffolk County

                                                                                                                                   Index No: 96-00203                     



PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY,                                                                         








Respondent’s Brief




Counter Statement of Preliminary Statement


In an action to recover damages for personal injuries, defendants appeal from an Order of the Supreme Court, Suffolk County (Doyle J) dated October 21, 1999 (R5-5) denying their motion for summary judgment and from an Order of the same court dated December 30, 1999 (R8) which denied the motion for leave to renew.






Counter Statement of Facts


The Action



Plaintiff commenced this action against the leasee, the managing agent and the property owner of the premises known as the Gatehouse Pub for injuries sustained when she failed to negotiate an unlit step up to a platform in the bar on May 19, 1995. (R65-67).  As a result of injuries sustained, plaintiff suffered a fractured left ankle requiring the insertion of a screw and four surgeries as well as other injuries. (R50-51).  The theory of liability is active negligence in the planning, design and maintenance of the unlit step up to the platform. (R68).



The Motion



                Defense counsel, without benefit of supporting affidavits of persons with knowledge of the facts, moved for summary judgment, as a matter of law, on the authority of Ellis v. Albany, (205 AD2d 1005, 613 NYS2d 983 [3rd Dept, 1984])



EBT Testimony and Exhibits: Mom’s Night Out


Plaintiff, Kathleen Cerro[1], a single working mother, works as a waitress at the Island Grill Diner.  On Thursday night, May 18, 1995 she went off duty at the restaurant. (R97).  As her young daughter went away with Ms. Cerro’s brother on vacation, Ms. Cerro accepted the cook’s invitation for a rare night out. (R97).

At first, dressed in the typical waitress uniform replete with flat sneaker type shoes (R120, 216), Ms. Cerro went with cook to the Cornerstone Pub. (R97).  From the Cornerstone Pub, they went to the Gatehouse Pub where there was suppose to be “a good band.” (R101).  Inside the darkened dimly light Gatehouse, there was a bar on one side and a platform with a step up on the other. (R103).  Ms Cerro drank two short glasses of Long Island Ice Tea. (R106).

As she was coming from the bathroom, she missed the step and fell backwards. (R104, 217).  There were no lights warning of the platform. (R104).   


I missed the step because it was virtually invisible.  At the time of the accident, the area around the step was not lit at all and appeared as shown in the photograph.  There were no markings, warnings, or colored strips to delineate the drop-off between the step and the floor.  To make matters worse, after I began to fall over the step, I tried, in vain, to grab onto something to stop my fall.  If any type of handrail or guardrail had been installed, I would have been able to avoid the accident.




Mr. Gilvary[2], the owner of the pub recalls that when the accident occurred he was across on the north side of the bar near the dartboard. (R188).  Plaintiff was “hollering [and crying] on the floor.” (R189-190).  Ms. Cerro incomprehensibly sobbed that she was too fat. (R191-192).


About four years prior to the accident, Mr. Gilvary purchased the pub. (R166).  The property ownership of the shopping mall was beset by bankruptcies. (R168).  No repairs or improvements consequentially were ever made to the inside. (R176).  Thus the platform remained a darkened trap.








After carefully inspecting the premises, Dr. Shankman, a diplomat of forensic engineering and a safety expert, (R156), rendered the following opinion:


1.                    The accident and injuries sustained by Kathleen Cerro on May 19, 1995

were caused by the negligence of the defendant(s) in failing to install/maintain the subject step/landing in conformity with the New York Sate Fire Prevention and Building Code.


2.                    Specifically, the subject step/landing as it existed on May 19, 1995 violated 9 NYCRR 765.4(a)(10) and (12) since the step/landing had less than three risers and was not provided with any type of guardrail whatsoever for any distance along its unguarded 24 foot length.  The step/landing also violated 9 NYCRR 765.3(b)(5), since it was dark and unilluminated at the time of the accident, according to plaintiff’s deposition testimony.


3.                    To render the step/landing in compliance with the New York State Fire Prevention and Building Code at minimal cost, at least two risers should have been installed, consisting of 4.5 inches each, for a total of 9 inches, and the step/landing to be installed at 9 inches high so that the step/landing would be become an additional stepping riser at 13.5 inches off the main floor with handrails/guardrails, and proper illumination.


4.                    Regardless of the claimed statutory violations, it is my professional opinion within a reasonable degree of safety engineering certainly that the step was not reasonably safe at the time of the accident.  It is apparent from the deposition testimony of Michael Gilvary, who managed the bar, that patrons would have to traverse the step on a regular basis to get from the floor to the tables and chairs.  The uniform manner in which the step and floor were carpeted, as shown in the photograph attached as Exhibit A, created a deceptive condition and rendered it extremely difficult for a patron to discern where the step ended and the floor began.  The failure to delineate the existence of the step in any manner, failure to adequately illuminate the step, and failure to provide any type of guardrail or handrail whatsoever during its entire 24 foot length, rendered the step unsafe at the time of the accident and was a proximate cause of the accident.







The Hutensky Group should maintain the property. (R134-135).


As a result of injuries sustained, Ms. Cerro lost employment, has had to submit to four painful surgeries and has had to resort to Social Services and the benevolence of friends and relatives.



Plaintiff’s Position


Based upon the wealth of documentary and testimonial evidence submitted to support plaintiff’s theory of liability, that defendant had not shown prima facie entitlement to summary judgment. (R140).  Plaintiff need not show in a civil action proof beyond all doubt or to an absolute certainty of defendant’s neglect but facts and circumstances which lead to the conclusion that defendant’s negligence caused the plaintiffs injuries. (R144). Citing Schneider v. Kings Hwy Hosp.,  (67 NY2d 743, 500 NYS2d 95).


The Court’s Decision


In her affidavit proffered in opposition, however, plaintiff states that while slipping, she “tried, in vain, to grab onto something to stop [her] fall.”  In the affidavit of Jay Shankman, whose background is in safety and regulatory compliance, he states that while examining, inter alia, the subject riser step, he noted that uniform and dark carpeting on and surrounding the riser “created a deceptive condition and rendered it extremely difficult for a patron to discern where the step ended and the floor began.”  His opinion that the defendant’s failure to mark and illuminate the step and to provide a guardrail or handrail rendered the step unsafe raises a triable issue of fact whether a dangerous condition on movant’s premises was a proximate cause of plaintiff’s fall (see Portilla v Rodriguez, 179 AD2d 631, 578 NYS2d 241 [1992]).



Accordingly, defendant’s summary judgment motion is denied.







Motion to Renew


Upon denial, defendant moved for leave to renew.  On renew defendant argued that Dr. Shankman’s affidavit was not evidence in admissible form. (R228).  Plaintiff replied that defendant had not borne the initial burden on a motion for summary judgment: a prima facie showing of entitlement to judgment as a matter of law. (R245 citing Lesocovich v. 180 Madison Ave. Corp., 81 NY2d 982, 985, 599 NYS2d 526, 528.



The Court’s Decision


The court treatment of the motion as one to re-argue and denied the motion:


ORDERED, that this motion by defendant for an order granting leave to renew

Its summary judgment motion, denied by an order of this Court (Doyle, J.),

dated October 21, 1999, is considered under CPLR 2221 and is denied.


Defendant’s submissions fail to demonstrate the existence of newly

Discovered material facts or evidence (see, Foley v Roche, 68 AD2d 588,

418 NYS2d 588 [1979], appeal after remand 86 AD2d 887,

447 NYS2d 528 [1982], appeal denied 56 NYD2d 507, 453 NYS2d 1025 [1982]).


















Question Presented




1.                    Is the injury suffered by the patron of a bar and grill who stumbles on a step up to a platform, which is neither marked nor light nor protected by guardrails so exotic that it was neither foreseeable nor avoidable ?




































                                                                POINT: AN INJURY TO A PATRON WHO




(Answering Appellant’s Pts I, II, III)





“Whenever the general public is invited into stores … [or] other places of public assembly, the owner … [must] provide … a reasonable safe premises, including a safe means of ingress and egress.”  Thomassen v. J&K Diner, 152 AD2d 421, 549 NYS2d 416, 418.  “Innkeepers, restaurateurs and similar proprietors” have an even broader duty at common law, an affirmative duty to “protect their guests, patrons and invitees from injury, annoyance or indignity.”  66 NY Jur2d HOTELS, MOTELS AND RESTAURANTS Sec 58, p 63.  “An innkeeper [must] exercise reasonable care in protecting patrons from reasonably anticipated causes.” Silver v. Sheraton Smithtown, 121 AD2d 711, 504 NYS2d 56, 57.  “The obligation of those who collect numbers of the people in one place for gain or profit to be vigilent in their efforts to protect has long been required … as far greater … than a private building.”  Schubert v. Hotel Astor, 168 Misc Rep 431, 5 NYS2d 203, 207, affd memo 255 App Div 1012, 8 NYS2d 567, affd 281 N.Y. 597.  While this responsibility does not carry with it an insurer’s liability, to prevail on a motion for summary judgment the defendant tavern keeper must show the accident to have been so unique that no p r e s c e n t i e n c e, however provident, could have perceived or averted the danger.  See Lesocovich v. 180 Madison Ave. Corp., 81 NY2d 982, 599 NYS2d 526; Huggins v. Rupert, 124 App Div 530, 108 NY Supp 919.


In the instant case, the patron was in a bar.  She had a few drinks on mom’s night out.  She tried to negotiate a step up to a platform where the tables are and fell.  The step up is unlighted and unmarked.  There is no guardrail.  A safety expert found violations both of the Building Code and of good sense and judgment in placing that type of step in an ill lit bar where patrons may be drinking.




In response, we see the hardly inspiring excuse that the premises may not have been maintained properly due to periodic bankruptcies of the owners.


Indeed long experience in this state with a change of level in an unexpected step-up and step-down to a platform has generally confided liability issues to the jury.  “Liability may be predicted on a store proprietor’s failure to warn customers of a change of floor level where [the] step … is concealed … by location or by inadequate lighting … [or] [a] … condition [which] create[s] a deceptive illusion that the platform and the … floor are on the same level.”  86 NY Jur2d Premise Liability Sec 357, p 113.


In Jameson v. Bloomingdale Bros., (___ Misc2d ___, 132 NYS2d 682 [Sup Ct, 1954]), the esteemed Justice Markowitz, later a Justice of the First Department, ruled that the duty to protect customers from a change in step arose directly from the business relationship.  The duty to avert “dangers [to patrons] reasonably anticipatable” is part of the duty “to keep [the] premises in … a reasonably safe condition for their intended use.”


Similarly in Hinkle v. RH Macy, (___ Misc2d ___, 201 NYS2d 211 [Sup Ct, 1960]), Justice Korne determined that a change in grade level creating the “illusion of one level plane” invited liability.  “[A] business [that] … invit[ed] the public to enter upon the premises … must use reasonable prudence to avoid unnecessary or unreasonable exposu[re] to danger.” quoting Larkin v. O’Neil, 119 N.Y. 221, 225, 23 NE2d 563, 564.


In Bloch v. Frank G. Shattuck Co, (2 AD2d 20, 152 NYS2d 964), the Appellate Division determined that inadequate lighting could have caused plaintiff to fail to perceive a 5” – 6” drop.  Despite claims of warnings of the drop, the high court reason trial required.  Plaintiff is to be given benefit of “every reasonable inference.”  Duffy v. Owen A. Mandeville Inc., 5 NY2d 730, 177 NYS2d 713, 714; Hanley v. James Butler Inc., 167 App Div 329, 153 NY Supp 39.


In Lesocovich v. 180 Madison Ave. Corp. (Supra), the landlord was required to stand trial for injury to a tenant’s guest where the edge of the roof was not properly demarked.

The learned Justice Leham, later to be the most eloquent of all New York Chief Judges, holding an issue of fact was presented by a boarder’s injuries in an unlighted staircase between the reading room of a hostel and his room, explained, “What constitutes reasonable care depends upon surrounding circumstances … defendant [who] invited plaintiff upon the premises was bound to exercise due care in making the passage[way] … safe.”  Thomas v. Wollcott, ___ Misc Rep ___, 180 N.Y. Supp 798 [App Term, 1st Dept].


The relationship of tavern keeper to protect the patron from injuries sounds in tort but arises in contract.  “By reason of the contracted relationship existing there is an implied warrantee that the premises are … as safe as reasonable care and skill … can make them.”  Friedman v. Schneider’s Praire House, 224 App Div 232, 203 N.Y. Supp 44 affd 250 N.Y. 574, 166 N.E. 329.  That underlying concept Justice (later Chief Judge) Leham taught applies regardless of whether the injury occurs in a hotel, bar, guest cottage or restaurant.  Tyhomas v. Wollcott, supra


In these situation, the plaintiff responsibility was not to prove defendant’s negligence to an absolute, mathematical or scientific certainty, only “circumstances … [which le[ad] to the conclusion that defendant’s negligence was the cause of plaintiff’s injuries.”  Schneider v. Kings Hwy Hosp., 67 NY2d 743, 500 NYS2d 95.


Ellis v. County of Albany (205 AD2d 1005, 613 NYS2d 983), relied upon by the appellant here and in the court below (App Br, p 8), does not seem particularly apropos.  In Ellis at a publicly owned stadium, the plaintiff left the marked walkways, went off the beaten track and stumbled some place out in the woods.  The complainant could not identify an injury producing instrumentality caused or created by the defendant.  The court in Ellis ruled; “There is no evidence … that any defective or dangerous condition … cause[d] her injury.”  (613 NYS2d supra at 984).


In the instant case, plaintiff by contrast specifically identifies the problem: an unlighted step-up without markings or guardrail.  Expert evidence would show this to be the product of defendant’s folly.


Defendant would take issue with the expert evidence (App Br 10-12) and with the photographs which explain the expert’s deposition (App Br p10).  Contrary to the defendant’s claims on appeal, the photographs appear to be authenticated by both plaintiff and defendant (R177, 218) and the affidavit of the expert.  The claim of lack of authenticity is hence shallow and without merit.


Defendant next takes aim at the expert and his expertise.  Expert evidence is offered at trial to help or assist the jury.  An expert, like any other witness, may testify to observable facts such as the colored carpet, caused the step to meld in with the lower level and thus “become invisible” in the words of the plaintiff.  Thus a court might consider the expert testimony on summary judgment.


In Portilla v. Rodriquez, (179 AD2d 631, 578 NYS2d 241, 242), a case very similar to this one, this court found such an expert’s guidance helpful in determining “the ultimate issue of plaintiff’s injuries” as well as “the rules and standards governing safe construction.” (578 NYS2d supra at 242).  What appellant would attempt on appeal is to challenge the expert in his expertise without the benefit of any kind of enlightenment.


The appellant next contends that the lower court should have given him permission to renew (App Br, p13).  The problem with his motion to renew is that it shows no more than the original motion and suffers from the same defects: failure to show entitlement as a matter of law.


Appellant claims that this issue is feigned (App Br, p 9).  Yet in the lower court, appellant submitted no affidavits of persons with first hand knowledge of the facts to demonstrate that the issue is as crystal clean as appellant claims them to be.  A reasonable marshalling of the facts shows that the plaintiff who used appellant’s premises for their intended purposes, ie mom’s night out, was crippled because the premises were poorly maintained during periodic bankruptcies of the owners of the property.  Upon such view of this view of evidence, defendant hardly shows entitlement to judgment as a matter of law. 


While the law seeks a balance between a shopkeeper’s duty “to make the place safe for protection of the invited public” and a rule of reason, (see Huggins v. Rupert, 124 App Div 530, 108 NY Supp 919), a lack of negligence is not any more presumed than negligence itself.  Summary judgment in negligence is approached with caution and imposed with reluctance (Andre v. Pomeroy, 35 NY2d 361, 362 NYS2d 131) only where the moving party demonstrates “evidentiary facts … warrant[ing] judgment as a matter of law” (Lamberta v. LIRR, 51 AD2d 730, 379 NYS2d 139, 140) and “elimiate[s] any material issue of fact from the case.”  Penthouse Terrace v. McGrath,  163 AD2d 144, 577 NYS2d 365, 367.  On such a motion the premise owner who invites both the public and the accompanying dangers to be expected, (Padula v. Big V, 170 AD2d 1094, 570 NYS2d 850 quoting  Kelsey v. Path, 52 AD2d 801, 383 NYS2d 347), moving for release from the action, must prove as a matter of law the accident to have been wholly fortuitous, outside his control. 


In this burden he has failed.  The motion hence should be denied.  In this and many other like circumstances, “what precautions may (have been) reasonably … required of a (shopkeeper) is generally a question of fact for the jury.”  Demas v. E&R Quilting Corp., 111 AD2d 898, 490 NYS2d 802; Cincotta v. Big C, 168 AD2d 818, 564 NYS2d 235; Newman v. A&P, 100 AD2d 538, 473 NYS2d 231, 232; Farar v. Teicholtz, 173 AD2d 674, 570 NYS2d 329; Silverstein v. Harmonic Club, 173 AD2d 378, 569 NYS2d 965; Nalan v. Helmsely Spear, 50 NY2d 507, 520, n8, 429 NYS2d 606.  “A jury [must decide if] defendant failed to use due care.”  Schubert v. hotel Astor, 225 App Div 1012, 8 NYS2d 567 affd 281 N.Y. 597, 22 N.E.2d 167.
















The order should be affirmed.







Dated:    May         , 2000                                                                    Yours, etc.,

                Ronkonkoma,  New York                   


                                                                                                                SARISOHN, SARISOHN, CARNER,


Attorneys for Plaintiff-Respondent

                                                                                                                350 Veterans Memorial Hwy.

Commack, New York 11725

(631) 543-7667                                                                                                               

By:                JOHN F. CLENNAN, ESQ.

Appellate Counsel

2206 Ocean Avenue

PO Box 1143

Ronkonkoma, New York 11779

(631) 588-6244


Of Counsel:  Michael Carner, Esq.

                         John F. Clennan, Esq.       











TO:         Clerk of the Court

                Appellate Division: Second Dept.

                45 Monroe Place

                Brooklyn, New York 11201


                KRAL, CLERKIN, REDMOND,


Attorneys for Defendant-Appellant

496 Smithtown Bypass

Smithtown, New York 11787

[1] The heavily excerpted EBT of Kathleen Cerro appears in discombobulated discontinuity at R95-120 and R216-222.



[2] Mr. Gilvary’s EBT testimony appears with numerous gaps at R167-204.