Lesocovich v. 180 Madison Avenue Corp.

Levine, J. (dissenting).

We respectfully dissent. In our view, the deposition testimony of Beth Van Demark and of Frank Commisso, a principal stockholder in defendant, sufficiently raised triable issues of fact to preclude summary judgment against plaintiff Michael W. Lesocovich (hereinafter plaintiff). Van Demark was a 23-year-old, unmarried nursery school teacher at the time of the accident. She and another young, single, employed adult woman had leased the second floor apartment in defendant’s building. The entire building consisted of a one-story wing and a three-story wing. The first floor of both wings was occupied as a bar. The second and third floors of the multistoried wing were occupied as apartments. Van Demark’s second floor apartment adjoined the roof of the one-story portion of defendant’s premises. The roof was readily accessible through a bedroom window in the apartment. When Van Demark took possession, the screen for that bedroom window was off the window and lying on the roof. There were several cinder blocks on the roof which had no apparent purpose other than as sitting stools. Van Demark had never been advised by the landlord that the roof was off limits and, in fact, she used it a number of times for sunbathing and cooking out on a charcoal grill. She had also used the enclosed porch on the roof. Van Demark had observed the landlord’s agents making repairs to the roof, and repairs were made by the landlord from time to time to remedy leaks in the bar under the roof. Although, as the majority notes, a previous entrance to the enclosed porch from the Van Demark apartment had been sealed off before her occupancy, the doorway had been sheetrocked over so as to conceal its prior existence. Moreover, there was an entryway to the enclosed porch from the roof which was not boarded up. There was also proof that substantial work was done on the roof during the renovations defendant made to the building after acquiring it in 1976.

We think the foregoing facts present a jury question as to defendant’s liability for both common-law negligence, under a Basso v Miller (40 NY2d 233) analysis, and negligence based upon a violation of the State Uniform Fire Prevention and Building Code (hereinafter the Code). Clearly, the roof area was under defendant’s control, as evidenced by the repairs defendant made to it during the term of Van Demark’s lease, and therefore defendant was responsible for exercising due care for the safety of persons who might foreseeably go on the roof (see, Noble v Marx, 298 NY 106, 109-110; see also, Ritto v Goldberg, 27 NY2d 887, 889). In view of the potentially disastrous result of a fall from the roof and the minimally burdensome cost of providing safeguards, such as the installation of a railing, a relatively low level of foreseeability should be enough to permit the case to go to a jury (see, Quinlan v Cecchini, 41 NY2d 686, 689-690; Fiederlein v Hochberg Bros., 83 AD2d 472, 478-479). One hardly needs clairvoyance to anticipate that young adult tenants in an urban setting would use an easily accessible flat roof surface adjoining their apartment for sunbathing, cookouts and socializing with friends in good weather. Moreover, in view of the presence of the enclosed porch, the only entrance to which was from the roof, together with the other circumstances previously described, we think it was entirely reasonable for Van Demark to have believed that she had a license to use the roof for such purposes. The presence of defendant’s tenant and her guests on the roof was at least as foreseeable as that of the plaintiff telephone company employee in Fiederlein v Hochberg Bros, (supra), who was injured on a remote area of the defendant’s roof, likewise accessible only through a window in a second floor apartment (see also, Starkey v Trancamp Contr. Corp., 152 AD2d 358, 363).

We also find a triable issue of fact regarding defendant’s negligence in failing to comply with a provision of the Code requiring elevated walking surfaces to which persons have access to "be protected by parapet walls or guardrails at least three feet in height” (9 NYCRR 762.1 [f]). Although the original construction of the accident premises predates the Code, the Code is expressly made applicable to subsequent "additions and alterations to buildings where set forth in Subchapter E of this code” (9 NYCRR 651.2). In turn, provisions in subchapter E of the Code make its mandates applicable (1) "to an entire existing building, as if hereafter erected, when the cost of any alterations * * * made within any six-month period exceed 50 percent of the cost of replacement of the building” (9 NYCRR 1231.3 [b]), and (2) to the entire roof covering on a building "[wjhenever more than 25 percent of the roof covering of a building is replaced in any six-month period” (9 NYCRR 1231.4). There was evidentiary proof that defendant had bought the property in 1976 for $30,000 and borrowed $80,000 in 1980 to make extensive repairs and alterations. In view of defendant’s superior access to information on the building’s replacement cost, we would find the foregoing proof sufficient to create triable issues as to whether defendant’s alterations and repairs to the premises in 1980 and 1981 make the foregoing sections applicable to establish a violation of 9 NYCRR 762.1 (f) in the failure to install parapet walls or guardrails on the roof of the premises when the renovations were effected. Such a violation of the Code would be evidence of negligence (see, Major v Waverly & Ogden, 7 NY2d 332, 336), giving rise to the possible imposition of liability on the basis of constructive notice (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565-566; Abrash v Long Is. Univ., 22 AD2d 940).

Furthermore, even if the majority is correct in holding that the proof submitted by plaintiff was insufficient to show that the cost of alterations of the property in 1980 and 1981 was more than 50% of replacement cost, summary judgment was still unwarranted. Plaintiff pleaded a violation of 9 NYCRR 762.1 (f) in his bill of particulars. Therefore, the burden was on defendant, as the proponent of the motion for summary judgment, to make out a prima facie defense by submitting proof in admissible form eliminating any material issue of fact as to the applicability of that section (see, Zuckerman v City of New York, 49 NY2d 557, 562). Defendant’s moving and reply affidavits contain no evidentiary proof whatsoever pertinent to any application of 9 NYCRR 762.1 (f), let alone the applicability of that section on the basis of postacquisition alterations. Indeed, defendant’s submissions on its motion do not even contain any assertion that 9 NYCRR 762.1 (f) did not apply, except for a vague and erroneous statement in its reply affidavit to the effect that any claimed violation of the Code "is outside the record and the pleadings and has no application to this case”. This hardly put plaintiff on notice that the burden shifted to him to submit full-blown proof of facts establishing that section 762.1 (f) of the Code applied because of subsequent alterations. We think it is manifestly unfair for the majority to impose that burden retrospectively on this appeal. Thus, defendant’s motion for summary judgment should have been denied, regardless of any insufficiency in plaintiff’s opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Based upon the foregoing, we would affirm Supreme Court’s order denying defendant’s motion for summary judgment in all respects.

Mahoney, J., concurs. Ordered that the order is reversed, on the law, without costs, motion granted, summary judgment awarded to defendant and complaint dismissed.