Eisenhart v. Marketplace

— Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendants’ motion for summary judgment dismissing plaintiffs’ complaint in this slip and fall case. In their complaint, plaintiffs allege that defendants, who together owned the common area of the shopping mall where the fall occurred, were negligent: 1. "in the manner and method by which they constructed the platform and permitted the continuance of the tile surface located on the raised platform”; 2. "in not providing and maintaining a handrail at the step area”; and 3. "in failing to warn patrons of the risk traverssing [sic] the area”. Defendants answered, denying all material allegations of negligence and setting forth the affirmative defense of comparative fault. Since plaintiffs’ theory of liability is predicated on the notion that the construction of the common area where the fall occurred was "inherently dangerous” (Miller v Gimble Bros., 262 NY 107, 108), defendants, in order to succeed on their motion for summary judgment, were required to show that such area was not, as a matter of law, inherently dangerous (see, CPLR 3212; Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425). In our view, defendants failed to meet this burden (see, Hantz v Fishman, 155 AD2d 415; Serrano v Spengler, 96 AD2d 935; Arnold v Egner, 3 AD2d 727; Richards v Olsen, 259 App Div 1112, rearg and lv denied 260 App Div 828). We further note that, despite the fact that defendants may have complied with the applicable building construction code regarding handrails (see, 12 NYCRR 16.5), such compliance does not necessarily preclude a jury from finding that the absence of a handrail was part of or contributed to any inherently dangerous condition existing in the area of the fall (see, Eidlitz v Village of Dobbs Ferry, 97 AD2d 747, 748). (Appeal from Order of Supreme Court, Monroe County, Wesley, J. — Summary Judgment.) Present — Callahan, A. P. J., Denman, Green, Balio and Davis, JJ.