

Branch v SDC Discount Store, Inc. (2015 NY Slip Op 03258)





Branch v SDC Discount Store, Inc.


2015 NY Slip Op 03258


Decided on April 16, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 16, 2015

Acosta, J.P., Saxe, Moskowitz, Richter, Feinman, JJ.


14839 306293/11

[*1] Forrest Branch, Plaintiff-Respondent,
vSDC Discount Store, Inc., Defendant-Appellant.


Gannon, Rosenfarb & Drossman, New York (Lisa L Gokhulsingh of counsel), for appellant.
Chirico Law PLLC, Brooklyn (Vincent Chirico of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 29, 2014, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant operated a gift shop in premises it leased on the ground floor and in the basement of a building managed by plaintiff's employer. Plaintiff alleges that, while he was descending the staircase leading into the unlighted basement in order to inspect pipes located there, he lost his balance and fell off the unguarded side of the staircase.
Defendant demonstrated that the basement staircase was not an "interior staircase" and thus the lack of handrail or wall on the open side did not violate any applicable provisions of the New York City Building Code (see Katz v Blank Rome Tenzer Greenblatt, 100 AD3d 407 [1st Dept 2012]). Defendant nonetheless had a common-law duty, as occupier of the premises, to maintain the staircase in a reasonably safe condition, in view of all the circumstances, including "the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 NY2d 233, 241 [1976] [internal quotation marks omitted]; see Swerdlow v WSK Props. Corp., 5 AD3d 587 [2d Dept 2004]). Issues of fact exist as to whether defendant was negligent in maintaining the staircase without any handrail or guard of any kind on one side, under all the circumstances, including the testimony of defendant's owner that the staircase was never used by her, by anyone working for the store, or by its customers.
Plaintiff's testimony that he could see the first few steps as he descended, and then lost his balance, did not eliminate an issue of fact as to whether the alleged lack of lighting in the basement contributed to his fall as he continued down the staircase (see Santiago v New York City Hous. Auth., 268 AD2d 203 [1st Dept 2000]; see also Swerdlow at 588). Defendant's claim that it lacked actual or constructive notice of the lack of lighting or of any dangerous conditions of the stairway is unavailing, since its corporate officer did not deny responsibility for changing lightbulbs as needed, and acknowledged that she had seen the staircase before renting the premises and that it was accurately depicted in a photo taken soon after the accident.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 16, 2015
CLERK


