        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

558
CA 12-01786
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


DEBORAH BELSINGER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

M&M BOWLING & TROPHY SUPPLIES, INC., DOING
BUSINESS AS VISTA LANES; VISTA LIQUORS, INC.
AND MELVIN F. ALLEN, DEFENDANTS-RESPONDENTS.


JAMES R. MCCARL & ASSOCIATES, MONTGOMERY (JAMES R. MCCARL OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (BRADY J. O’MALLEY OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Norman
I. Siegel, A.J.), entered July 5, 2012. The order granted the motion
of defendants for summary judgment dismissing the second amended
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying those parts of defendants’
motion seeking summary judgment dismissing the claims for negligence
and failure to warn and reinstating those claims, and as modified the
order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when she fell inside defendants’
bowling alley. The accident occurred when plaintiff, after entering
the building, unknowingly stepped down from a concrete step located
immediately inside the doorway. There is a 4½-inch drop from the top
of the step to the floor below. The second amended complaint, as
amplified by the bill of particulars, alleges that defendants were
negligent in, inter alia, permitting a dangerous condition to exist on
the premises, namely, the cement step inside the doorway; failing to
warn of the dangerous condition; and failing to provide adequate
lighting for the entryway.

     We conclude that Supreme Court erred in granting defendants’
motion for summary judgment insofar as it sought dismissal of the
negligence and failure to warn claims. We therefore modify the order
accordingly. With respect to the negligence claim, we note that “[i]t
is beyond dispute that landowners and business proprietors have a duty
to maintain their properties in [a] reasonably safe condition” (Di
Ponzio v Riordan, 89 NY2d 578, 582), and “whether a dangerous or
                                 -2-                           558
                                                         CA 12-01786

defective condition exists on the property of another so as to create
liability depends on the peculiar facts and circumstances of each case
and is generally a question of fact for the jury” (Trincere v County
of Suffolk, 90 NY2d 976, 977 [internal quotation marks omitted]).
Here, defendants failed to meet their initial burden of establishing
as a matter of law that the step in question was not inherently
dangerous (see Powers v St. Bernadette’s R.C. Church, 309 AD2d 1219,
1219; see also Hayes v Texas Roadhouse Holdings, LLC, 100 AD3d 1532,
1533; Eisenhart v Marketplace, 176 AD2d 1220, 1220). Although
defendants submitted evidence establishing that the relevant building
codes were inapplicable and that defendants had never been issued a
citation for the step or the entryway, compliance with such codes
“ ‘does not necessarily preclude a jury from finding that the . . .
[step or the entryway] was part of or contributed to any inherently
dangerous condition existing in the area of [plaintiff’s] fall’ ”
(Bamrick v Orchard Brooke Living Ctr., 5 AD3d 1031, 1032; see
Eisenhart, 176 AD2d at 1220). Moreover, “ ‘[c]ompliance with
customary or industry practices is not dispositive of due care but
constitutes only some evidence thereof’ ” (Hayes, 100 AD3d at 1532,
quoting Miner v Long Is. Light. Co., 40 NY2d 372, 381).

     We similarly conclude that defendants failed to meet their
initial burden of establishing entitlement to judgment as a matter of
law with respect to plaintiff’s failure to warn claim (see generally
Barry v Gorecki, 38 AD3d 1213, 1216). Although there was a sign on
the door that read “Caution Step Down,” defendants acknowledged that
the sign would not be visible to someone for whom the door was being
held open and, here, plaintiff alleges that her son was holding the
door open for her. In any event, the sign was faded and accompanied
by several other signs, thus potentially reducing its effectiveness.
In addition, defendants did not paint or mark the step with bright
colors or otherwise draw attention to it. Because defendants failed
to meet their initial burden of proof with respect to the negligence
and failure to warn claims, we need not consider the sufficiency of
plaintiff’s opposing papers with respect to those claims (see Alvarez
v Prospect Hosp., 68 NY2d 320, 324).

     We further conclude, however, that defendants met their initial
burden as a matter of law with respect to plaintiff’s inadequate
lighting claim (see generally Stever v HSBC Bank USA, N.A., 82 AD3d
1680, 1680-1681, lv denied 17 NY3d 705). Specifically, defendants
submitted evidence demonstrating that the lighting in the entryway
complied with applicable industry standards and was otherwise
adequate, and in opposition plaintiff failed to raise an issue of fact
(see generally Broodie v Gibco Enters., Ltd., 67 AD3d 418, 418-419).
The court therefore properly granted that part of defendants’ motion
for summary judgment dismissing that claim.




Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
