SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT
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KATHLEEN CERRO,
Case Nos.
Plaintiff-Respondent, 99-10828
00-01404
--
against --
Supreme Court
Suffolk County
Index No: 96-00203
NORTHFIELD ENTERPRISES, INC., d/b/a THE
GATEHOUSE PUB, THE HUTENSKY GROUP and
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY,
Defendants-Appellants.
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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).
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])
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.
(R152-153).
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.
(R5-6).
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]).
(R8).
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
STUMBLED OVER AN
ILL LIT STEP UP
TO AN UNMARKED
PLATFORM IS AVOIDABLE
IN THE EXERCISE OF
DUE CAUTION
(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.
Conclusion
The order should be affirmed.
Dated: May
, 2000 Yours, etc.,
Ronkonkoma, New York
SARISOHN, SARISOHN, CARNER,
LeBOW, BRAUN & SHIEBLER
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,
RYAN, PERRY & GIRWAN
Attorneys for Defendant-Appellant
496 Smithtown Bypass
Smithtown, New York 11787