Recitation as required by CPLR 2219(a) of the papers considered in the review Defendant's Notice of Motion for Summary Judgment.

By Notice of Motion dated June 24, 2024 (Seq. No. 002), Defendant George Wonica moves for an Order pursuant to CPLR §3212 granting him summary judgment dismissing Plaintiffs' Amended Complaint. Plaintiff filed written opposition to the motion, arguing that there are material questions of fact that require a trial. Defendant's motion was orally argued on November 19, 2024, and the motion submitted for decision upon receipt of the transcript.

In his Amended Complaint, Plaintiff Vincent Lafata ("V.L.") alleges that Defendant owns a parcel of real property located at 147 Margaretta Court, Staten Island New York ("Subject Premises"). Plaintiff further alleges that on or about January 31, 2019, his wife Janet Lafata ("J.L.") was injured when she fell off the front stairs of the subject premises. Plaintiff alleges in his Verified Bill of Particulars that a dangerous and defective condition existed on the premises in the form of a defective stairway. Plaintiff contends that the stairway is defective because it lacks a second handrail in violation of various New York State and City codes and regulations, or in the alternative, common law standards of safety. J.L., who suffered from dementia at the time of the accident, died due to natural causes three years after the accident in June of 2022. This case was stayed pending Plaintiff V.L.'s appointment as Administrator of J.L.'s estate. J.L. was never deposed. V.L. was deposed and testified that in addition to being married he was J.L.'s legal guardian and that they lived together in an apartment at the subject premises for about three years.

On the evening of the incident, V.L. was in front of J.L. as they ascended the front stairs of the subject premises. At the time of the accident, V.L. was in the process of opening the front door. While he was unlocking the door, J.L. was on the second step of the three-stair flight. As he turned around to help his wife into the home, V.L. observed that she was lying on the ground, on her left side, parallel to the stairs. When he went to help her up, she indicated that she was in pain. V.L. testified that he never asked her what happened because he somehow "knew what happened." However, V.L. admits that he never actually heard nor saw the accident, nor did he discuss it with his wife prior to her death.

V.L. further testified that although they lived at the subject premises, they were unaware of any prior incidents involving the stairs and had never complained about their design or [*2]condition to Defendant. V.L. testified that on the day J.L. fell, it was cold, but there was no ice or snow on the stairs. It is undisputed that a handrail extended along the left side of the stairs but there was none on the right side. There is no evidence in the motion record that there was ever a railing on the right side of the stairs or that one was requested. V.L. admitted that J.L. complained of having hip pain prior to this incident and was treating with a doctor for "issues with her hip." Defendant George Woncia was the Plaintiffs' landlord at the time of the accident. Defendant testified that there was always a railing on the left side of the stairs but never one on the right side. Defendant claimed that a railing installed on the right side of the stairs was unnecessary and would prevent the front door from opening properly. The subject premises is a two-family home with two separate apartments. Plaintiffs resided on the first floor. The three stairs leading up to apartment are surrounded by low masonry "cheek walls" that extend higher than the adjacent steps.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof sufficient to establish the existence of a material issue of fact which would require a trial. See Zuckerman v. City of New York, 49 NY2d 557 (1980). When determining a motion for summary judgement, facts must be viewed "in the light most favorable to the non-moving party." See Vega v. Restani Const. Corp., 18 NY3d 499 (2012).

A property owner has a duty to maintain their property in a reasonably safe condition. See Sangaray v. West Riv. Assoc., LLC, 26 NY3d 793 (2016). For a property owner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition, it must be established that (1) a defective condition existed and (2) that the owner affirmatively created the condition or had actual or constructive notice of its existence. See Villalby v. Daughney, 214 AD3d 843 (2d Dept. 2023); see also Mangano v. 62 Seguine Ave Realty, LLC, 2025 NY Slip Op 50526 (Sup. Ct. Rich Cty. 2025). A property owner owes no duty to protect or warn against conditions that are open and obvious which, as a matter of law, are not inherently dangerous. See Butler v. NYU Winthrop Hosp., 225 AD3d 658 (2d Dept. 2024); see also Neiderbach v. 7-Eleven, Inc., 56 AD3d 632 (2d Dept. 2008). A property owner is also not liable for trivial defects, not constituting a trap or nuisance, over which a person might stumble or trip. See Schenpanski v. Promise Deli, Inc., 88 AD3d 982 (2d Dept. 2011); Trincere v. County of Suffolk, 90 N.Y2d 976 (1997). A statutory or building code violation may form the basis for a landowner's liability. See Gaston v. New York City Hous. Auth., 258 AD2d 220 (1st Dept. 1999). However, an out-of-possession landlord is generally not liable for negligence with respect to the condition of the premises unless it "(1) is contractually obligated to make repairs or maintain the premises, or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision." Reyes v. Morton Williams Associated Supermarkets, Inc., [*3]50 AD3d 496 (1st Dept. 2008); see also Behluli v. 228 Hotel Corp., 172 AD3d 1151 (2d Dept. 2019).

Plaintiffs' stated theory of the case is not that the stairs were defective in such a way as to cause J.L. to fall. Rather, Plaintiffs claim that the absence of a railing on the right side of the stairs facilitated J.L.'s "fall to the ground," as the presence of a railing would have potentially allowed her to break her fall. In other words, Plaintiffs claim that the absence of a railing was a proximate cause of injuries that she could have potentially avoided if a second railing was installed. See e.g. Al Aabdy v. 281 St. Nicholas Partners LLC, 193 AD3d 402 (1st Dept. 2021).

In opposition to this theory of liability, and in support of his motion, Defendant submits the expert affidavit of Rudi O. Sherbansky P.E., a licensed professional engineer. Mr. Sherbansky visited the subject premises on November 4, 2019, and submitted a detailed expert report containing his observations and opinions. Mr. Sherbansky indicated that the subject premises was constructed circa 1930 and described it as having a single front door entry with three brick and mason steps with landings leading up to it. Mr. Sherbansky observed that a metal handrail was present on the left side of the stairs which "provides a reasonable safety level in going up the steps." Mr. Sherbansky opined that, the subject stairs were not hazardous or dangerous in any way. Mr. Sherbansky further opined that as the house was built in 1930, and had not been substantially altered, the stairs at issue were subject to the "grandfathering" provisions of subsequent codes and regulations. See NYCBC §§ 27-105; 27-111. As such, Mr. Sherbansky concluded that, in his professional opinion, there was no requirement for the stairs to have a second railing.

This Courts finds that Defendant has established a prima facie burden of his right to summary judgment as a matter of law. Bardales v. VAM Realty Corp., 124 AD3d 707 (2d Dept. 2015); Anderson v. Columbari, 79 AD3d 679 (2d Dept. 2010). There is no proof of any defect in the subject stairs that might have caused Plaintiff's fall, and there is no evidence in the motion record to establish that Plaintiff tried to break her fall by reaching for a railing that wasn't present, or that a railing would have otherwise prevented her fall. Cf. Al Aabdy, Supra. Plaintiffs lived in the subject premises for years, were unaware of any prior incidents, and never complained to Defendant that a second railing should be installed. Accordingly, there is no evidence that Defendant had actual or constructive notice that the absence of a second railing could be construed as a common law "defective condition." See Torres-Martinez v. Macy's, Inc., 146 AD3d 638 (1st Dept. 2017). While Defendant admits that it was his responsibility to maintain the stairway, he has established that the absence of a second railing was not a structural or design defect in violation of a statutory provision such that it needed to be remedied. See Kavenaght v. 498 Seventh, LLC, 321 AD3d 720 (2d Dept. 2024); see also Robinson v. M. Parisi & Son Constr. Co., 51 AD3d 653 (2d Dept. 2008); Nikolaidis v. La Terna Rest., 40 AD3d 827 (2d Dept. 2007). "Handrail violations pertaining to a staircase [generally] do not constitute significant structural defects." Bawa v. JJ. Operating Inc., 234 AD3d 517 (1st Dept. 2025). As Defendant has met his initial burden to establish an entitlement to summary judgment, the burden now shifts to Plaintiff to raise a material issue of fact.

In opposition, Plaintiffs submit an expert report prepared by SMS Engineering, P.C. ("SMS"). SMS did not opine that the Building Regulations and Codes relied on by Plaintiff apply to this Subject Property. Rather, they argued that "whether or not any of the codes apply to the subject premises, the subject stairway does not conform to good and accepted practice for stairway construction." In addition to the proffered expert testimony, Plaintiff V.L. argues that the manner in which his wife fell, in and of itself, raises a question of fact which precludes summary judgment. He further argues that Defendant had a common law duty to maintain the stairs in a reasonably safe condition. A duty that Defendant allegedly breached through the lack of a second handrail, regardless of whether it was required by law. Plaintiff V.L. contends that a second handrail may have broken his wife's fall, and would have prevented, or at least mitigated her injuries.

Plaintiff's arguments are insufficient to raise a triable issue of fact sufficient to defeat summary judgment. See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). As discussed above, there is no evidence that a right-side handrail was required under any applicable code, rule, or statue. Moreover, there is no evidence that the stairs were in any way defective, or that the absence of a second railing constituted a dangerous condition. See Qi Zhong Weng v. Jian Juan Wang, 227 AD3d 832 (2d Dept. 2024); see also Lezama v. 34-15 Parsons Blvd. LLC, 16 A.D3d 560 (2d Dept. 2005). Even if the Court were to assume that the absence of a railing could have the potential to be dangerous, there is no evidence to indicate that Defendant was on notice of any prior incidents or requests for the installation of second handrail. See Johnson v. Nouveau El. Indus., Inc., 38 AD3d 611 (2d Dept. 2007). To the contrary, Defendant explains that given the way the front screen door opened, it was not feasible to have a second handrail installed and that the stairs were used on a regular basis without any prior incident. In the absence of a showing that the lack of a second railing was "inherently dangerous" summary judgment is further warranted because the condition of the stairs was open, obvious, and readily observable. See Young Min Kim v. Jetro Cash & Carry Enters. LLC, 2025 NY Slip Op 01837 (2d Dept. 2025); see also Cupo v. Karfunkel, 1 AD3d 48 (2d Dept. 2003).

Finally, Plaintiffs' claim that J.L. would not have sustained injuries, or would have sustained less serious injuries, if there had been a second handrail installed is based upon pure speculation. See Mitgang v. PJ Venture HG, LLC, 126 AD3d 863 (2d Dept. 2015); see also Goldfischer v. Great Alt. & Pac. Tea Co., Inc., 63 AD3d 575 (1st Dept. 2009). It is undisputed that V.L did not observe or witness the way in which his wife fell. He also did not inquire as to how the fall happened. As such, there is no evidence that she ever reached out to grab a handrail that did not exist, or that the absence of a handrail in any way contributed to her fall. A failure to observe or otherwise identify the cause of a fall is fatal to a trip and fall cause of action because a finding of negligence would be based upon speculation. See Belton v. Gemstone HQ Realty Assoc., LLC, 145 AD3d 840 (2d Dept. 2016). Notably, the doctrine of res ipsa loquitur, which would permit a fact finder to infer negligence based upon the sheer happening of the event, is inapplicable to the circumstances presented. See Torres-Martinez v. Macy's Inc., 146 AD3d 638 (1st Dept. 2017). "The injured plaintiff's accident could have happened without negligence on anyone's part." Braithwaite v. Equitable Life Assur. Soc' of the United States, 232 AD2d 352 (2d Dept. 1996).

Accordingly, for the reasons set forth above, and for the additional reasons set forth in Defendant's moving papers, Summary Judgment is granted to Defendant and Plaintiffs' Complaint is dismissed with prejudice. This constitutes the Decision and Order of the Court in relation to motion sequence number 002.