Lesocovich v. 180 Madison Avenue Corp.

Mercure, J. Appeal from an order of the Supreme Court (Prior, Jr., J.), entered August 23, 1991 in Albany County, which denied defendant’s motion for summary judgment dismissing the complaint. Plaintiff Michael W. Lesocovich (hereinafter plaintiff) brought this action against the owner of premises located at 180 Madison Avenue in the City of Albany to recover for serious injuries which he sustained in a fall from a roof. The subject property consisted of a three-story building improved with a commercial enterprise on the ground floor and one apartment on each of the remaining floors. The second-floor apartment was leased by Beth Van Demark and Debbie Richardson. On the day of plaintiff’s accident, Van Demark hosted a small gathering on the roof of a one-story portion of the building, which was accessed by climbing through a window in her bedroom. The gravamen of the complaint is that the accident was caused by defendant’s failure to have installed a parapet or railing to prevent a person on the roof from inadvertently falling off its edge. Plaintiff alleged that this failure constituted both statutory and regulatory violations as well as common-law negligence. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint upon the ground, inter alia, that .it breached no common-law, statutory or regulatory duty of care to plaintiff. Supreme Court denied the motion, finding that triable issues of fact were presented, and this appeal by defendant ensued. We reverse. Defendant supported its motion with a compelling factual showing that the roof from which plaintiff fell was not part of the premises demised to defendant’s tenants or used by them as a common area with defendant’s express or implied permission, and that neither plaintiff’s presence on the roof nor his failure to perceive and avoid the obvious hazard was reasonably foreseeable (see, Scurti v City of New York, 40 NY2d 433, 442; Goslin v La Mora, 137 AD2d 941, 942; Kelly v McGreevy, 182 App Div 584; cf., Knapp v Fulton County Natl. Bank & Trust Co., 6 AD2d 742, lv denied 5 NY2d 705). In view of plaintiff’s failure to satisfy his resulting burden of coming forward with admissible evidence raising a material question of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562), Supreme Court should have granted defendant’s motion and dismissed the complaint. Clearly, the roof area was not open to tenants of the building at 180 Madison Avenue. To the contrary, the uncontradicted evidence submitted on the motion was that entry to the roof could be gained only by climbing up on a bed, chair [601] or other object in Van Demark’s bedroom and then crawling out a fairly high, small window. Notably, a doorway which had once led to an enclosed porch on the roof had been sealed off. Van Demark candidly acknowledged that the roof was not part of her leased premises and that neither she nor Richardson had sought or received permission to use the roof. Further, there is no evidence in the record to support a finding that defendant was aware of any tenant’s use of the roof area. Van Demark testified that she had used the roof on only four or five prior occasions to sunbathe or cook out, that there had been no prior "gatherings” or parties on the roof, and that neither she nor her cotenant had advised defendant, its principals or agents of their actual or intended use of the area. In view of the foregoing, evidence of the existence of cinder blocks on the roof or that a screen was absent from the bedroom window does not raise a legitimate factual issue. Rather, this evidence is probative of nothing and creates, at best, the specter of an issue (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338). Similarly, the roof did not constitute a "[wjalking surface[ ] to which persons have access” (9 NYCRR 762.1 [Q), thereby defeating the claim of violation of the State Uniform Fire Prevention and Building Code (9 NYCRR part 600 et seq.) (hereinafter the Code). Moreover, defendant supported its motion with an evidentiary showing that the subject building predated promulgation of 9 NYCRR subchapter B and, thus, was not subject to its terms (see, 9 NYCRR 651.2). Plaintiff failed to satisfy his resulting burden of raising a factual issue as to whether any "conversions, additions [or] alterations” (9 NYCRR 651.2) brought the building within the coverage of the Code, including whether work performed in 1980 and 1981 constituted "alterations, additions or repairs made within [a] six-month period [the cost of which] exceed[s] 50 percent of the cost of replacement of the building at the beginning of that six-month period” (9 NYCRR 1231.3 [b]). Significantly, no evidence was submitted as to the replacement cost of the building and no competent evidence was submitted concerning the cost of alterations and repairs to the building at 180 Madison Avenue. We disagree with the position of the dissent that defendant had the initial burden of presenting evidence that there had been no conversion, addition or alteration such as to bring this grandfathered structure within the coverage of the Code (see, 9 NYCRR 651.2, 1231.1, 1231.3). To the contrary, the proponent of a summary judgment motion has a burden only [602] as to "material” issues of fact (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Here, no competent factual allegations of the complaint or bill of particulars support the present claims that the Code applied to defendant’s building and that defendant violated certain of its provisions (see, Conti v Albany Med. Ctr. Hosp., 159 AD2d 772, 774, n, lv denied 76 NY2d 702). It is our view that the listing in a bill of particulars of statutory and regulatory provisions which a defendant is claimed to have violated does not of itself raise a material issue of fact as to violation of the enumerated provisions or any of them. Plaintiffs remaining contentions have been considered and found meritless. Weiss, P. J., and Casey, J., concur.