Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendant's motion for leave to bring a second motion for summary judgment dismissing the complaint.

PapersNumbered

Notice of Motion, Affirmation and Exhibits Annexed.......................1-6

Affirmation in Opposition and Exhibits Annexed..............................7-12

Upon the foregoing cited papers, the decision/order on this motion is as follows:

Defendant moves for leave to bring a second summary judgment motion and, upon leave being granted, asks for summary judgment. Plaintiff opposes the motion.

After oral argument, the court grants defendant leave to bring the motion, and for the reasons herein, denies the motion in its entirety.

Although defendant does not so state, this is really a motion to renew, based upon what [*2]defendant believes to be an intervening change in the law. CPLR §2221(e)(2); see also, Glickman v Board of Education, 278 AD2d 364 [2nd Dept 2000].

Defendant's motion consists solely of an attorney affirmation, copies of the prior motion decision and the Appellate Division decision and plaintiff's EBT transcript. Counsel opines that this is a simple legal question that entitles them to judgment as a matter of law. It is not.

Plaintiff was injured on December 12, 2005 when he slipped and fell on a stairway leading from an outdoor service entrance to the basement of a large apartment building on Park Avenue in Manhattan.

Defendant initially moved for summary judgment on the basis that the storm in progress doctrine applied to the facts of the case. The judge who reviewed the papers agreed and granted defendant's motion on January 27, 2009. However, that court apparently did not see the expert's affidavit provided by plaintiff in opposition, which alleged numerous Building Code violations with regard to the stairway and handrail. Plaintiff appealed to the Appellate Division, Second Department, which affirmed the portion of the decision concerning the "storm in progress" doctrine, but reversed the dismissal of the complaint, and referenced the portion of the plaintiff's opposition to the original motion which alleged that the plaintiff fell because the hand-rail and the stairway violated the New York City Building Code. The Appellate Division said "viewing the evidence in the light most favorable to plaintiff, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law by eliminating all issues of fact as to whether the presence of another handrail was required, and whether the defendant's alleged failures in this regard proximately caused the plaintiff's accident. Contrary to the defendant's contention, as the movant, it had the burden of refuting the plaintiff's contention that the stairway where the accident took place was in violation of certain statutory and code provisions [emphasis added and citations omitted]." Velez v. 955 Tenants Stockholders, Inc., 66 AD3d 1005 [2nd Dept 2009]. Thus, the Appellate Division concluded that plaintiff had raised triable issues of fact and was entitled to a trial.

The plaintiff's expert affidavit, it should be noted, pointed out several deficiencies with regard to the one handrail which was available, and with regard to the steps, in addition to claiming that two handrails are required on a exterior exit stairway. He states in part that the handrail was obstructed and recessed, was placed too high on the wall, that the landing was "forward pitched," that the first riser, at 4½ inches, was too low, and that the tread width was too short, all of which were, in his opinion, violations of the New York City Building Code. The Appellate Division clearly reinstated all of these alleged violations and not just the claim that two handrails were required, as evidenced by the use of plural and not singular words, as underlined in the quoted section above.

In this motion, defendant argues that a decision entitled Cusumano v City (15 NY3d 310 [2012]) has since determined that stairways such as the one in the instant case are not required to have two handrails, as plaintiff has claimed. As such, defendant requests leave to bring a second summary judgment motion, and upon being granted such leave, asks that the motion be granted and the complaint dismissed. Defendant offers no explanation as to why a trial was not held in the three years [*3]between the Appellate Division decision herein and the Cusumano decision.

In Cusumano, which involved a fall on a staircase as well, the applicable Building Code was the Code adopted in 1968. However, the building in this case was completed before 1968 and after 1938, so the 1938 Building Code is applicable. Defendant's counsel seems entirely unaware of this principle. A building must be constructed by following the Building Code in effect on the date of the construction. Subsequent Code amendments do not have any bearing on a claim of a code violation unless there has been a substantial renovation of the building after the issuance of the Certificate of Occupancy so as to bring the building under a newer code.

In New York City, the Building Code of 1938 was completely replaced in 1968 and again in 2008. Each version is numbered differently, so they can be distinguished by merely looking at the section number.

Defendant incorrectly contends that Cusumano stands for the proposition that New York City Building Code § 27-375(f), from the 1968 Code, which requires two handrails on "interior stairs," does not apply to the stairs in the service entrance in defendant's building, because all stairs leading to a basement are access stairs and not interior stairs. That is, defendant claims the Building Code defines stairs such as those plaintiff fell on as "access stairs," and thus two handrails are not required.

In Cusumano, the stairs in question were entirely inside the building, andled from the building's first floor to its basement, and such stairs are in fact defined in the 1968 Building Code as "access stairs." Access stairs do not require two handrails.They did not require two handrails under the 1938 Code either. "Interior Stairs" in the 1968 Code are, counter-intuitively, defined as exit stairs,^[FN1] and must serve as an exit from a building. McElroy v Bernstein, 2009 NY Misc Lexis 4676 (Sup Ct Queens Co) citing Schwartz v Hersh, 50 AD3d 1011 (2nd Dept 2008). The 1968 Building Code, § 27-375, defines "interior stair," not as a stair case within a building's interior, but rather as a "stair within a building, that serves as a required exit."

To summarize, in the 1968 Code not all stairs which go down to a basement are "interior stairs." If the stairway leads to a building exit, it is an interior stair, and if the stairway is inside the building and does not lead to an exit, it is an access stair.

The facts in the instant case are distinguishable from the facts in Cusumano in two important ways. The Certificate of Occupancy for the building in the instant case is from 1952, which the court had to locate on the New York City Buildings Department website, because defendant did not provide this crucial information, which puts the building under the 1938 Building Code and not the 1968 Code. Even more importantly, the stairs in the instant case lead from the building's basement to an exit door to the outside of the building. The photos provided by plaintiff make this clear. They are therefore not "access stairs" as defined in the 1968 Code.

Under § C26-292.0 of the 1938 Building Code, "required exit stairs shall have walls or well secured balustrades or guards on both sides with hand rails on both sides." As the stairway in question is an exit stairway, this is the applicable section of the applicable Building Code. [*4]

There is nothing in Cusumano, a case concerning whether stairs inside a building between a first floor and a basement are "interior stairs" or "access stars" under the 1968 Building Code, which is applicable to the case at bar, which concerns a stairway leading to an exterior building exit under the 1938 Building Code. The defendant still has not "demonstrated a prima facie entitlement to judgment as a matter of law by eliminating all issues of fact as to whether the presence of another handrail was required, and whether the defendant's alleged failures in this regard proximately caused the plaintiff's accident." Velez, supra.

It must be noted that in the 1968 Code, interior stairs of 44-88 inches in width do require two handrails, but the 1938 Code required two handrails on all exit stairs, regardless of the width of the stairway. Defendant does not provide any evidence that the 1968 Code should apply as a result of significant renovations to the building, nor does defendant establish that, if the 1968 Code did apply, that the stairway is less than 44 inches wide so only one handrail is required.

Therefore, summary judgment is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: Brooklyn, New York

April 23, 2013



Hon. Debra Silber, A.J.S.C.