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

35
CA 14-01219
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


JOSEPH MORREALE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOSEPH FROELICH, DEFENDANT-APPELLANT.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MELISSA L.
VINCTON OF COUNSEL), FOR DEFENDANT-APPELLANT.

BROWN CHIARI LLP, LANCASTER (DAVID W. OLSON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered February 11, 2014. The order denied the motion
of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries he sustained when he fell down a set of stairs leading to
the front entrance of a two-family dwelling owned by defendant.
Plaintiff alleged that he was beginning to descend the stairs when he
grabbed a finial that broke off from the wrought iron railing to which
it had been welded, causing him to fall. In his complaint, plaintiff
claimed defendant’s negligent maintenance of the railing caused his
fall. Supreme Court denied defendant’s motion for summary judgment
dismissing the complaint, and we affirm.

     We agree with defendant that he met his burden of establishing
that he maintained his property “in a reasonably safe condition in
view of all the circumstances” (Boderick v R.Y. Mgt. Co., Inc., 71
AD3d 144, 147; see Basso v Miller, 40 NY2d 233, 241). However, we
reject defendant’s contention that plaintiff failed to raise a
question of fact. Rather, we conclude that the evidence submitted by
plaintiff, namely his expert’s opinion that the railing had been
allowed to corrode over a long period of time and that the corrosion
constituted a dangerous condition which caused plaintiff to fall,
raised a question of fact whether defendant had, in fact, reasonably
maintained his property (see generally Zuckerman v City of New York,
49 NY2d 557, 562).

     We reject defendant’s further contention that plaintiff’s expert
improperly relied upon photographs in forming his opinion because they
                                 -2-                           35
                                                        CA 14-01219

had not been “authenticated.” The record, including the date stamp on
the photographs themselves as well as the testimony of defendant, his
wife, and plaintiff’s daughter, establishes that the photographs were
taken soon after plaintiff’s fall and that they depicted the railing
as it appeared at that time (cf. Santiago v Burlington Coat Factory,
112 AD3d 514, 515; Kozma v Biberfeld, 264 AD2d 817, 818).

     We reject defendant’s final contention that he established as a
matter of law that he was not negligent in allowing the railing to
corrode. “ ‘Violation of the Building Code constitutes some evidence
of negligence’ ” (Brigandi v Piechowicz, 13 AD3d 1105, 1106; see
Thorne v Cauldwell Terrace Constr. Corp., 63 AD3d 826, 827), and the
Property Maintenance Code of New York State (PMCNYS), incorporated by
reference into the Uniform Fire Prevention and Building Code (see 19
NYCRR 1226.1), requires property owners to coat all exterior metal
surfaces with a corrosion inhibitor and to “stabilize[]” all surfaces
that have already become corroded (see PMCNYS § 304.2). Consequently,
it will be “for a jury to decide whether defendant[] violated the
Building Code and, if so, whether that violation proximately caused
plaintiff’s accident” (Romanowski v Yahr, 5 AD3d 985, 986).




Entered:   February 6, 2015                    Frances E. Cafarell
                                               Clerk of the Court
