Murray v. Villa Barone Ristorante, Inc. , 148 A.D.3d 458 ( 2017 )

Murray v Villa Barone Ristorante, Inc. (2017 NY Slip Op 01783)

Murray v Villa Barone Ristorante, Inc.

2017 NY Slip Op 01783

Decided on March 9, 2017

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 March 9, 2017
Sweeny, J.P., Mazzarelli, Moskowitz, Kahn, JJ.

3346 23282/12E

[*1]Mary Murray, et al., Plaintiffs-Respondents,

v

Villa Barone Ristorante, Inc., et al., Defendants-Appellants.

Lewis Brisbois Bisgaard & Smith, New York (Nicholas P. Hurzeler of counsel), for appellants.

Mark B. Rubin, P.C., Bronx (Mark B. Rubin of counsel), for respondents.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about October 11, 2016, which, inter alia, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants' motion for summary judgment was properly denied in this action where plaintiff Mary Murray was injured when she fell while ascending the stairs in defendants' restaurant. Plaintiff testified that as she attempted to move her foot to the next step, it came in contact with the front lip of the second step, and contrary to defendants' assertion, plaintiff also testified that she had to bend down to grab the handrail, which was low. This evidence, as well as the affidavit of plaintiffs' expert engineer, who opined that the low positioning of the handrails and the higher position of the step risers were in violation of various New York City Building Codes, sufficiently raised triable issues as to whether the riser height of the stairs and low handrail were proximate causes of plaintiff's injuries (see Lievano v Browning School , 265 AD2d 233 [1st Dept 1999]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 9, 2017

CLERK