                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 23, 2017                   523272
________________________________

G. CHRISTOPHER ACTON,
   Individually and as
   Administrator of the Estate
   of MARY THERESA GALVIN
   ACTON, Deceased,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

1906 RESTAURANT CORP. et al.,
                    Respondents.
________________________________


Calendar Date:   January 11, 2017

Before:   McCarthy, J.P., Garry, Lynch, Rose and Aarons, JJ.

                             __________


      Mainetti, Mainetti & O'Connor, PC, Kingston (John T. Casey
of counsel), for appellant.

      McCabe & Mack LLP, Poughkeepsie (Betsy N. Abraham of
counsel), for respondents.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Meddaugh, J.),
entered February 5, 2016 in Sullivan County, which, among other
things, granted defendants' motion for summary judgment
dismissing the complaint.

      Mary Theresa Galvin Acton (hereinafter decedent) sustained
fatal injuries from an unwitnessed fall down an interior stairway
at defendants' restaurant. From the dining area of the
restaurant, an unlocked and unmarked doorway opened over the
stairs, which descended into a basement employee area.
                               -2-                523272

Plaintiff, decedent's husband, commenced this premises liability
action – individually and on behalf of decedent's estate –
against defendant 1906 Restaurant Corp. and its owners, defendant
Robert DeCristofaro (hereinafter DeCristofaro) and defendant
Rosemarie DeCristofaro. Thereafter, defendants moved for, among
other things, summary judgment dismissing the complaint. Supreme
Court granted defendants' motion for summary judgment and
dismissed plaintiff's complaint finding that, while there were
triable issues of fact regarding defendants' duty and breach,
plaintiff's inability to explain the cause of decedent's fall
would require a jury to impermissibly speculate as to proximate
cause.1 Plaintiff appeals.

      Defendants are not liable for decedent's fall if they
"maintained the premises in a reasonably safe condition and
neither created nor had actual or constructive notice of any
allegedly dangerous condition" (Carter v State of New York, 119
AD3d 1198, 1199 [2014] [internal quotation marks and citations
omitted]; see Murphy v Hometown Real Estate, 132 AD3d 1126, 1127
[2015]). Likewise, defendants are not liable if the conclusion
that defendants' negligence was the proximate cause of decedent's
fall would be based on pure speculation (see Pascucci v MPM Real
Estate, LLC, 128 AD3d 1206, 1206 [2015]; Ash v City of New York,
109 AD3d 854, 855 [2013]). In contrast to such speculation,
proximate cause can properly be based on logical inferences from
circumstantial evidence (see Pascucci v MPM Real Estate, LLC, 128
AD3d at 1206; see e.g. Griffin v Sadauskas, 14 AD3d 930, 931
[2005]). Finally, this Court has repeatedly found that "it is a
matter of '[s]imple logic' [that] a door swinging over steps may
create a 'hazardous and unsafe' condition" (Griffin v Sadauskas,
14 AD3d at 930, quoting Burton v State of New York, 90 AD2d 585,
586 [1982]).

      In support of their motion, defendants offered the
deposition testimony of DeCristofaro. He acknowledged that he
frequently used the stairway in question, that the stairs were
original and installed in 1906, that the stairs were worn and


     1
        Supreme Court also denied defendants' motion to preclude
an expert witness.
                              -3-                523272

that there was no nonslip adhesive installed on the stairs.
Although the stairway led to a basement storage area intended for
access only by employees, he acknowledged that there was no
signage on the door at the top of the stairway restricting
access. Moreover, the deposition of the individual who was
dining with decedent prior to the accident established that
decedent was a "very active, very agile" 59-year-old woman.
Decedent's dinner companion explained that, at the end of their
meal at the restaurant, decedent left the table and that, shortly
thereafter, the companion heard decedent fall down the stairs.
Although defendants' proof established that decedent had consumed
alcohol prior to the accident – three alcoholic beverages over
the course of an hour-long happy hour and the subsequent dinner
at the restaurant – DeCristofaro, who observed decedent before
the accident, testified that she did not appear to be
intoxicated.

      Even if we assume that defendants' submissions satisfied
their initial burden, plaintiff's submissions raised material
issues of fact requiring a trial. Photographs of the stairway
that plaintiff submitted established that the door that decedent
entered opened away from her and that, when opened, it cleared a
short interior landing and went over the descending steps. The
steps are wooden and visibly bowed and worn. Plaintiff also
submitted the affidavit of a licensed architect who opined that
the stairway had deteriorated stair treads, improper riser height
and tread depths, an ungraspable handrail and an interior landing
that was too short inasmuch as that the door opened over the
stairs. The architect concluded, to a reasonable degree of
professional certainty, that the dangerous condition of the
staircase caused decedent's fall. Moreover, plaintiff submitted
the affidavit of a person who had worked for the restaurant for
about a year who averred to having fallen on the subject stairs
"at least two or three times."

      Viewing the evidence in the light most favorable to
plaintiff and affording him the benefit of every favorable
inference (see Commissioners of the State Ins. Fund v BSB
Constr., Inc., 144 AD3d 1236, 1237-1238 [2016]), material issues
of fact exist requiring a trial. The evidence established
numerous questions of fact as to whether the staircase presented
                              -4-                  523272

a dangerous condition to those using it, the most obvious being
that the door opened over descending stairs (see Griffin v
Sadauskas, 14 AD3d at 931; Hanley v Affronti, 278 AD2d 868, 869
[2000]; Burton v State of New York, 90 AD2d at 586).
DeCristofaro's regular use of the stairs and his personal
installation of the handrail established a question of fact as to
notice or creation of the dangerous condition (see Sawyers v
Troisi, 95 AD3d 1293, 1294 [2012]; Hanley v Affronti, 278 AD2d at
869). Finally, although the fall was unwitnessed, a jury could
logically infer from the evidence regarding the risks that the
staircase posed, the evidence of previous falls on the staircase
and the evidence that decedent was healthy, agile and not visibly
intoxicated at the time of the accident that the dangerous
condition of the staircase caused her fall (see Griffin v
Sadauskas, 14 AD3d at 931; see generally Pipp v Guthrie Clinic,
Ltd., 80 AD3d 1014, 1016 [2011]). Accordingly, defendants were
not entitled to summary judgment dismissing the complaint.

     Garry, Lynch, Rose and Aarons, JJ., concur.



      ORDERED that the order is modified, on the law, with costs
to plaintiff, by reversing so much thereof as granted defendants'
motion for summary judgment dismissing the complaint; said motion
denied; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
