The following papers numbered 1 to 6 read herein:Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2

Opposing Affidavits (Affirmations)3-4

Reply Affidavits (Affirmations)5

Additional Photograph of the Accident Scene6

Plaintiff Steve Nicoletti (plaintiff) commenced this action to recover damages for injuries he sustained when he fell through a rear deck of a single-family owner-occupied house of defendant Susan Iracane (defendant). Defendant had hired plaintiff's brother-in-law, who was doing business as North American Builders, to (a) supply and install a new complete Trex ^[FN1] deck of the same size as her existing wooden deck, (b) supply and install new PVC railings around the deck, (c) "screw [the] deck in," and (d) remove all resulting debris, pursuant to a contract, dated [*2]July 12, 2010.^[FN2] On the same day on which the parties signed the contract and defendant paid a deposit, plaintiff and his brother-in-law inspected and measured the existing wooden deck. Plaintiff's brother-in-law subcontracted to plaintiff the actual work to be performed.^[FN3] A week later, in the morning of July 19, 2010, plaintiff and his helper visited the premises to determine the scope of their work. They entered defendant's house, walked through the rear kitchen, and stepped outside the house and onto the wooden deck. As they exited the kitchen and stepped onto the deck's surface, they turned to their left and made a few steps forward when, without any creaking or other warning, the deck's structure collapsed under their weight and they fell to the ground below. Although the deck's surface was elevated about 5 feet off the ground, plaintiff and his helper fell lower (or about 12 feet) when they landed inside the concrete stairwell that led to the basement. Plaintiff, then 52 years of age, was injured, but his young helper, who formerly played high school football, was not.

Plaintiff alleges that his injuries are the result of defendant's negligence and violation of Labor Law §§ 200, 240 (1), and 241 (6). Defendant has timely moved for summary judgment dismissing the complaint in its entirety. Although plaintiff does not oppose dismissal of his claims under Labor Law §§ 240 (1) and 241 (6),^[FN4] he argues that his injury was caused by the deficiencies in the deck's structure (vertical beams, cross beams, horizontal joists, and vertical support posts), and that defendant has failed to meet her burden of establishing that she did not breach her duty to take reasonable care and prudence in securing the safety of plaintiff's work area.

The record refutes defendant's contention that plaintiff may not recover for injuries allegedly resulting from the deck's structural deficiencies because he was hired to remedy them.^[FN5] At the time of his accident, plaintiff's brother-in-law had not been hired to replace the deck's structure, but only its surface (or decking) and side railings. The parties' contract described the proposed work as, [*3]among other things, to "screw [the] deck in," meaning to install the decking. Plaintiff's pretrial testimony (at page 34:8-13 of his deposition) echoes the terms of the parties' contract. It was only after plaintiff's accident that defendant paid $1,250 in "Extra Labor & Material" (in addition to the contracted-for price of $4,000) to replace the deck's structure. Because plaintiff was not hired before his accident to replace the deck's structure, he was not injured through the dangerous condition which he had undertaken to eliminate (see Farrell v Okeic, 266 AD2d 892, 893 [4th Dept 1999]).

Likewise, the record refutes defendant's alternative contention that plaintiff may not recover for his injuries because the deck's structural deficiencies were readily observable. That was not the case according to plaintiff's pretrial testimony, but in any event, the open and obvious nature of an allegedly dangerous condition does not preclude a finding of liability against the landowner as a matter of law (see Cupo v Karfunkel, 1 AD3d 48, 49 [2d Dept 2003]).

More to the point, however, is defendant's contention that she did not affirmatively create the deck's structural deficiencies, or had actual or constructive notice of their existence. It is undisputed that she did not build the deck, which someone else had built for her 20 years earlier. Although she had observed that a portion of the deck's surface, on its right side, was rotted, plaintiff was walking on its left side when he had his accident.^[FN6] Defendant, by way of her pretrial deposition testimony, has established prima facie that she had no actual or constructive notice of the deck's structural deficiencies. In opposition, plaintiff has failed to rebut this showing. His expert's contention that defendant "had to see a rotte[d] wood carriage support system because it was open and obvious to be seen" and that "[e]very single time she swept around the base of the undercarriage she saw the rotting undercarriage," is belied by plaintiff's pretrial testimony that the deck's structural deficiencies were latent (see James v Cushman & Wakefield of NY, Inc., 2007 WL 2931036, 2007 NY Slip Op 33132[U] [Sup Ct, NY County 2007]).^[FN7] "If a defect could not have been discovered by a layman, even by inspection, it is considered a latent defect" (Rapino v City of New York, 299 AD2d 470, 471 [2d Dept 2002], lv denied 100 NY2d 506 [2003]). Reasonable inspection, not inspection for latent defects, is required to establish constructive notice (see Applegate v Long Is. Power Auth., 53 AD3d [*4]515, 516 [2d Dept 2008]). It would appear that defendant would have had to take off the deck's surface to discover the deck's structural deficiencies and that would have been unreasonable. No constructive notice, therefore, can be imputed where, as here, the alleged deficiencies were latent and would not be discoverable by a layman upon reasonable inspection (see McMahon v Gold, 78 AD3d 908, 910 [2d Dept 2010], lv denied 16 NY3d 706 [2011]).

Plaintiff's expert cites a number of the Building Code sections he contends were violated: Building Code §§ 27-127 ("Maintenance Requirements"), 27-128 ("Owner Responsibility"), 27-556 ("Live Loads — General"), and 27-557 ("Floor Live Loads").^[FN8] Not one of these provisions, even if breached, would affect the parties' respective burden of proof on the instant motion. Building Code §§ 27-127 and 27-128 are "non-specific and only state a general duty to maintain the premises in a safe condition" (Reddy v 369 Lexington Ave. Co., L.P., 31 AD3d 732, 733 [2d Dept 2006]). They are insufficient to state a specific statutory violation that would impose liability on defendant. Next, Building Code § 27-556 ("Live Loads — General") is likewise non-specific to provide a basis for liability.^[FN9] Finally, Building Code § 27-557 ("Floor Live Loads"), while sufficiently specific, cannot establish liability on its own. Assuming, without deciding, that this provision was breached, that would only constitute evidence of negligence, inasmuch as the Building Code is a municipal ordinance and lacks the legal effect of a state statute (see Elliot v City of New York, 95 NY2d 730, 734 [2001]). The dispositive test remains whether defendant has made a prima facie showing that she did not create an allegedly dangerous condition, or had actual or constructive notice thereof. Defendant has made a prima facie showing in this regard, whereas plaintiff has failed to rebut it.

As a matter of policy and, more fundamentally, logic, the Court notes that a carpenter with about 30 erected/repaired decks "under his belt" is in a better position to avoid a workplace accident than an elderly homeowner who (indirectly) hired him to replace the top portion of her deck. Allowing the homeowner to shift the full financial responsibility for the workplace accident involving the deck's structural deficiencies to the hired carpenter increases the latter's incentive to take care, and his care is crucial because if he takes due care, an accident will be averted that the elderly homeowner — who has no knowledge of the deck's structural deficiencies — might not have known how to avert.

Accordingly, it is

ORDERED that defendant's motion is granted, and the complaint is dismissed.

This constitutes the decision, order, and judgment of the Court.

E N T E R,

J. S. C.