De Clef Pineiro v. American Museum of Natural History

De Clef Pineiro v American Museum of Natural History 2024 NY Slip Op 31565(U) May 3, 2024 Supreme Court, New York County Docket Number: Index No. 157391/2021 Judge: Shlomo S. Hagler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. SHLOMO S. HAGLER PART 17 Justice -------------------X INDEX NO. 157391/2021 JOHN DE CLEF PINEIRO MOTION DATE 05/30/2023 Plaintiff, MOTION SEQ. NO. 001 - V -

THE AMERICAN MUSEUM OF NATURAL HISTORY, DECISION + ORDER ON MOTION Defendant. -------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001} 23, 24, 25, 26, 27, 28,29, 30,31, 32, 33,34,35, 36,37,40,41,42,43,44,45,46,47,48,49, 50, 51,52,53,54, 55,56,57, 58,59,61,62,63,64,66 were read on this motion to/for JUDGMENT-SUMMARY

In this motion sequence, defendant American Museum of Natural History ("AMNH")

moves for summary judgment dismissing plaintiff John De Clef Pineiro's complaint. Plaintiff

opposes and cross-moves to amend the bill of particulars.

I. Facts

Plaintiff's Deposition

This action arises out of an incident that occurred on April 23, 2021 at the American

Museum of Natural History in Manhattan (Plaintiffs EBT [NYSCEF Doc. No. 30] at 17).

Specifically, the accident occurred on a "subterranean staircase leading into the ground floor of

the museum" (id.). The staircase leads downward into the museum from the 81st Street subway

station (id at 36). On the day of the subject accident, plaintiff John De Clef Pineiro was entering

the museum because he had an appointment for his COVID-19 vaccine (id at 21). At that time,

the museum was serving as a vaccination site and the day of the subject accident was the first

day it was open for that purpose (id. at 21-22). Plaintiff walked from his apartment to get to the

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museum, and he noticed signs when he approached the museum (id. at 33). There were several

signs affixed to the fencing around the museum property pointing towards the subject

vaccination site (id. at 34-35). Plaintiff followed the signs which directed him past the main

museum entrance and towards the entrance through the 81st Street subway station (id. at 35-36).

Plaintiff had been in this station at least once before that he could remember, in approximately

2010 (id. at 37). However, plaintiff testified that the first time he had used the subject staircase

was the day of the accident (id. at 38). Plaintiff was wearing a mask and a face shield and was

also wearing his glasses (id.).

Plaintiff testified that there was a sign indicating the entrance to the vaccination site

"[r]ight at the top of the stairs of the subway entrance leading downstairs to a long corridor" (id.

at 41). Plaintiff descended the subway entrance stairs from the street level (id. at 42). To enter

the museum from the subway station, there is a row of brass doors (id. at 43). There was a guard

standing by the doors, to whom plaintiff showed his paperwork and the guard directed him

through the middle brass door and down the stairs (id. at 44, 46). Plaintiff testified that when he

first walked through the center set of brass doors, there was a wide and long flight of stairs

leading downward (id. at 49). He described the lighting as "bright" (id.). Plaintiff began to

descend the staircase (id. at 50). Plaintiff testified that the wide staircase is broken up into

sections by handrails (id. at 54). Plaintiff testified that he remembered at least two handrails

demarcating the middle section of the staircase which he was descending, but soon after, he said

that he remembered a handrail on his right side only (id. at 54, 56). Plaintiff testified that he at

first did not notice the handrails on either side of the section of staircase because the doors led

him right down the center of the section (id. at 54). The doors did not immediately lead into the

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staircase; there was a platform before the stairs began (id. at 55). The stairs were made of "light-

colored stone" and there were 14 steps (id at 56).

Plaintiff was asked why he didn't proceed to either of the handrails before descending the

staircase. He responded, "It was just a matter of trajectory, going through the doors, and then

they opened up to the center portion of the staircase, so that [was] how I was proceeding

directly" (id). Plaintiff testified that he believed he was proceeding down the stairs "careful[ly],

not fast" (id. at 58). He was not rushing because he was early to his appointment (id). He also

testified that he was looking down as he began to descend the steps (id at 58-59).

The accident occurred when plaintiff was near the bottom of the steps (id at 61 ). Plaintiff

testified that he noticed a guard waving to him (id.). After seeing the guard wave in his direction,

plaintiff testified that he looked up and "was no longer looking down" but remained going down

the stairs at the same pace (id.). Describing the accident, plaintiff testified as follows:

I proceeded down the steps. As I thought, I was proceeding all the way from the top, and my foot, left foot, slipped out from under me. I was still looking at the guard when this was happening. My foot slipped out from under me, which was a bit startling to me. I didn't know where it was going. It did land on another level below. I did not know what level that was. Whether it was yet another step or the ground floor, but by then, I had lost my balance. I was-my body was being propelled forward and all this took place within two seconds or so.

Id at 65.

He testified that he fell on his shoulder on the floor (id. at 70). He testified that within a

few seconds, people were crowding around him and he was helped into a chair (id. at 74-75).

While he was sitting in the chair he spoke to Mr. Raphael Payne who created an incident report

(id. at 75, 77). Plaintiff did not notice any water or debris on the steps (id. at 66). He also

testified that in hindsight, he knew that there was a colored strip at the very last step that was a

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different color than the stairs and the rest of the floor, but he did not realize that at the time of the

fall (id at 81 ).

AMNH Deposition

On behalf of the museum, Raphael Payne ("Payne") appeared for a deposition. Payne

was employed by the museum as the Senior Manager of Fire and Life Safety at the time of the

deposition (Payne EBT [NYSCEF Doc. No. 32] at 8). He testified that when plaintiff fell, Payne

was at the lower level "over by where the security personnel who mans the subway station"

stood (id at 22). He continued that "all the time I was in that vicinity" (id). He testified "My job

in particular was to watch everybody who came into the building, because I could be called at

any given time, and I was in a position where I was just standing there" (id at 29). There was a

station at the bottom of the subject staircase where security guards would check people's bags

(id at 30). Payne testified that once an individual reached the bottom of the staircase, if they had

a bag, they would "be alerted to stop at the desk where security personnel would check their bag"

(id). Payne testified that he oversaw the security personnel who were with him at the vaccination

site. In particular, he directed them to "fact check and provide the guidance of people where they

should go" (id at 27).

When asked ifhe saw what caused the plaintiff to fall, Payne testified that it appeared to

him that plaintiff "misstepped" (id at 36). Specifically, Payne testified that "his footing caused

him to miss the bottom of the stair. He just missed the stair completely, that is how it looked to

me" (id) Payne testified that he made the incident report for the subject accident (id at 40). On

the incident report, he wrote that the plaintiff "misstepped at the bottom stair at the subway

entrance" and testified that he based this off his perception of plaintiffs fall (id at 42). Payne did

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not know of any other falling incident that occurred on the subject set of stairs besides the

subject accident and two other incidents, but said it was possible (id at 58).

II. Procedural History

Defendant filed this motion for summary judgment on May 30, 2023 (NYSCEF Doc. No.

23). On August 3, 2023, plaintiff filed a cross-motion to amend the bill of particulars to add a

violation of the 1922 NYC Building Code (NYSCEF Doc. No. 49). Oral argument on this

motion and cross-motion was held on November 27, 2023, whereby the Court denied the cross-

motion to amend the bill of particulars as the staircase was not a type of staircase defined in the

1922 Building Code (see NYSCEF Doc. Nos. 64, 66).

III. Summary Judgment Standard

"(T]he proponent of a motion for summary judgment must demonstrate that there are no

material issues of fact in dispute, and that it is entitled to judgment as a matter of law" ( Ostrov v

Rozbruch, 91 AD3d 147, 152 [1st Dept 2012]). "Failure to make such prima facie showing

requires denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v

Prospect Hasp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Once a movant has met

this burden, "the burden shifts to the opposing party to submit proof in admissible form sufficient

to create a question of fact requiring a trial" (Kershaw v Hospital far Special Surgery, 114 AD3d

75, 82 [1st Dept 2013]). "[I]t is insufficient to merely set forth averments of factual or legal

conclusions" (Genger v Genger, 123 AD3d 445,447 [1st Dept 2014], quoting Schiraldi v US.

Min. Prods., 194 AD2d 482,483 [1st Dept 1993]). Finally, evidence must be "construed in the

light most favorable to the one moved against" (Kershaw, 114 AD3d at 82). Therefore, if there is

any doubt as to the existence of a triable fact, the motion for summary judgment must be denied

(Rotuba Extruders v Ceppos, 46 NY2d 223,231 [1978]).

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IV. Discussion

A substantial section of the parties' papers is used to argue about the staircase's

compliance with the New York City Building Code. This issue was previously decided at oral

argument on November 27, 2023 when the Court determined the inapplicability of the 1922

Code to these stairs because they do not fit within that code's definition of "interior stairs" (see

NYSCEF Doc. No. 66 at 13). Although it has been determined that AMNH cannot be liable

under a violation of the Building Code, AMNH can still be liable under common law theories of

negligence as the owner of the subject staircase (see Branch v SDC Discount Store, Inc., 127

AD3d 547, 547 [1st Dept 2015]).

"In order to prevail on a negligence claim, a plaintiff must demonstrate (1) a duty owed

by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting

therefrom (Pasternack v Laboratory Corp. ofAm. Holdings, 27 NY3d 817, 825 [2016] [internal

quotation marks and citation omitted]). It is a building owner's "normal duty to maintain the

premises in a safe manner" (Marcinak v Technical Mech. Servs., Inc., 17 AD3d 140, 140 [1st

Dept 2005]). AMNH "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" (Branch, 127 AD3d at

54 7). Plaintiff advances three theories of common-law negligence, one of which was rejected at

oral argument (see NYSCEF Doc. No. 66 at 29-30 [rejecting the argument that defendants were

negligent when the AMNH security guard "distracted" plaintiff because "that would open up a

Pandora's box for liability"]).

The first remaining argument is that the stairs were slippery which caused the plaintiff to

fall. Defendant argues that there was no hazardous condition on the steps alleged by plaintiff, as

there was no debris or physical defect on the step (see Memo of Law [NYSCEF Doc. No. 25] at

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10). Defendant further argues that the stairs are made of travertine, a type of stone which is

inherently a non-slip material (see id.).

It must first be noted that the First Department has held that the mere "inherently

slippery" condition of a floor surface is not an actionable defect to maintain a cause of action for

negligence (Waiters v Northern Trust Co. ofNew York, 29 AD3d 325, 326-27 [1st Dept 2006];

see also Sims v 3349 Hull Ave. Realty Co., LLC, 106 AD3d 466,467 [1st Dept 2013] [finding

worn marble tread that caused plaintiff to slip on staircase was not an actionable defect]). Even if

an inherently slippery staircase could support a cause of action for negligence, AMNH has met

its prima facie burden by providing an expert affidavit from a professional engineer, David

Behnken, P .E. who went to the accident site and inspected the subject staircase and stair treads

(see Behnken Report [NYSCEF Doc. No. 34] at 1-2). Behnken reiterated that the stone treads are

"slip-resistant in accordance with standard custom and practice" (id. at 4). Behnken conducted

"wet dynamic slip resistance testing along the stairway's lower treads in the area of Mr. De Clef

Pineiro's fall" and said this test was done in accordance with an approved standard for field slip

resistance testing set forth by the American National Standards Institute (id. at 2-3). Behnken

affirmed that this test determined the wet coefficient of friction on the stairs measured at 0.58,

which is well above the minimum standard of 0.42 and as such, the stair material "provides a

high slip resistance that meets the standard of care for walking surfaces" (id. at 4). This evidence

submitted by the defendant's expert along with plaintiffs testimony that there was no visible

debris or defect on the steps shows prima facie that there was no defective or slippery condition

in existence when plaintiff fell (see Silber v Sullivan Props., L.P., 182 AD3d 512, 512-13 [1st

Dept 2020]).

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In opposition, plaintiff fails to raise a triable issue of fact regarding a defect on the

staircase. Plaintiffs expert, David Jimenez, R.A., contends that the wet coefficient of friction test

used by Behnken was not an accepted test to determine whether a staircase conforms with the

Building Code (see Jimenez Report [NYSCEF Doc. No. 41] ,i,i 8-9). It has been determined that

conformity with a Building Code is no longer an issue in this motion and the remaining question

is whether AMNH is liable under a common-law negligence standard. Even so, the First

Department has recognized coefficient of friction tests to be acceptable standards to measure the

slipperiness of a staircase when the expert references a "specific standard in asserting that a

[minimum coefficient of friction value] is the commonly accepted value for a non-slip surface"

(Sarmiento v C&E Assocs., 40 AD3d 524, 526 [1st Dept 2007] [internal quotation marks

omitted]; see also Ridolfi v Williams, 49 AD3d 295,295 [1st Dept 2008]). Here, Behnken

references the ANSI A326.3-2017 standard that determined that a coefficient of friction value of

0.42 or above provides high slip resistance (Behnken Report at 4).

Furthermore, Jimenez does not provide a competing test to show that the staircase was

too slippery under accepted standards. Jimenez simply says he "felt the tread upon which Mr. De

Clef Pineiro slipped with [his] hand" (Jiminez Report at ,i 6). Jimenez says this is standard

practice to determine whether stairs comply with Building Code requirements, but as previously

mentioned, compliance with the Building Code is no longer a relevant standard for the purposes

of this motion. The fact that Jimenez felt the stairs with his hand and it felt slippery does not

create an issue of fact competing with the results of Behnken' s coefficient of friction test (see

Silber, 182 AD3d at 513 ["[P]laintiffs expert opinion was conclusory and speculative, since he

did not take measurements of the coefficient of friction of the stairwell or conduct any other

tests" to show the existence of "a hazardous condition"]). As such, plaintiff failed to raise a

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triable issue of fact that the stairs were slippery or contained some other actionable defect to

support a denial of AMNH's motion for summary judgment.

The next theory of negligence proffered by the plaintiff is that the staircase created an

"optical confusion." Plaintiff asserts that the staircase created an optical confusion because the

layout and coloring of the stairs made it difficult to discern where the staircase began and ended

(see Aff. in Opposition [NYSCEF Doc. No. 40] at~ 41 ). In support of its motion, defendant

argues that there was no optical confusion as plaintiff himself testified the lighting was good, and

photographs show a clear demarcation of where the stairs end in the form of a thick brown line at

the foot of the stairs (see Memo of Law at 13; Behnken Photos [NYSCEF Doc. No. 34]).

Furthermore, Behnken affirmed in his report that

The presence, location, and color of the handrails, as well as the contrast in colors and textures between the stone treads and the terrazzo lower landing/lower level of the museum, provided numerous sharp visual cues of the stairway configuration. As such, the presence and location of the lower treads and lower landing are open and obvious, readily apparent to persons attentive to their surroundings, and safe.

Behnken Report at 5.

Indeed, the photographs taken by Behnken during his inspection show that there are

many visual cues that would prevent optical confusion and assist a user in traversing the

staircase. First, the wide staircase is sectioned off by brass handrails that start at the top step and

end at the bottom step. Further, the photos show a thick brown line immediately before and after

the beginning and end of the staircase to provide a color contrast visual cue as to where the steps

begin and end. Finally, the more porous-looking travertine stair treads are a visibly different

material than the smooth and shiny tiled floor. Defendant thus established its entitlement to

summary judgment by submitting evidence that the stairs "were not dangerous conditions as a

matter of law through photographic evidence" showing that the stairs were demarcated with

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thick brown lines contrasting with the color of the stairs and the floor (Pinkham v West Elm, 142

AD3d 477,477 (1st Dept 2016]; see also Kamps v New York City Transit Auth., 89 AD3d 421,

422 (1st Dept 2011]; Hall v New Way Remodeling, Inc., 168 AD3d 620, 620 [1st Dept 2019]

["Defendant also showed that the alleged defect was open and obvious, and not inherently

dangerous, by submitting photographs showing that the door saddle was readily observable"]).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff testified that he had

difficulty discerning where the stairs ended, and his expert Jiminez testified that the

configuration of the stairs created a risk of optical confusion (see Ex. F to Plaintifrs Opp.;

Jiminez Report at 114). However, this theory of optical confusion "was contradicted by the

expert's own photographs" showing that the stairs had clearly demarcated thick brown lines at

the beginning and end ofthe steps and the presence of the handrails to serve as visual cues for

where the stairs began and ended (Hall, 168 AD3d at 620; Ex. A to Jiminez Report [NYSCEF

Doc. No. 41]; see also Martin v City ofN. Y., 82 AD3d 653,654 [1st Dept 2011] ["Although

plaintiff alleged that a curb on the property caused her fall and that the curb posed an optical

confusion, the photographic evidence is not sufficient to defeat the motions"]). Similarly,

plaintiff testified that he went back to the subject staircase after the accident and took photos (see

Plaintiff's EBT at 158). He testified that the photos taken of the staircase that day look "very

similar ... if not identical" to how the stairs looked on the date of the accident (id.). These

photos also show the brass handrails and the thick brown line that is visible from the viewpoint

of someone traversing down the stairs, thereby contradicting his argument that the stairs create a

risk of optical confusion (see Ex. J to Memo of Law [NYSCEF Doc. No. 3 5])

Therefore, defendant met its burden on summary judgment by providing sufficient

evidence to demonstrate that there was no actionable defect on the stairs. In opposition,

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plaintiffs testimony and his expert's report failed to raise a triable issue of fact precluding

summary judgment in view of the photographs they submitted.

"Because the alleged defects are not actionable, the issue of whether defendant had notice .

is irrelevant" (Rubin v Trustees ofColumbia Univ. in the City ofNew York, 212 AD3d 544,545

[1st Dept 2023 ]). However, even if the issue of notice remained relevant, plaintiff failed to raise

a triable issue of fact to preclude a granting·of summary judgment to AMNH. The parties

provided evidence in the form of two incident reports and videos of previous falls on the subject

staircase occurring in the five years prior to plaintiffs accident (see Ex. B to Plaintiff's Opp.

[NYSCEF Doc. No. 42]). However, plaintiff did not submit affidavits of the man or woman who

were the subjects of the prior falls, and Payne testified that he did not recall seeing or writing the

incident report for either prior fall (see Payne EBT at 51-53). Without any testimony from

someone with knowledge, the statements contained in these incident reports constitute

inadmissible hearsay (see Vaughn v Westfield, LLC, 216 AD3d 849,851 [2d Dept 2023]).

Even if the court were to consider the statements contained within the incident reports, it

would show that the incidents were not substantially similar to plaintiff's accident to constitute

sufficient constructive notice and create a triable issue of fact (see Mallen v Farmingdale Lanes,

LLC, 89 AD3d 996, 997 [2d Dept 2011] ["[T]he plaintiff's contention that incident reports

regarding prior accidents raised a triable issue of fact ... is speculative, as there was no evidence

that those accidents were similar in nature to plaintiff's accident"]). The videos of both prior

accidents show the subjects of the prior accidents falling on the left side of the staircase rather

than the center section where plaintiff fell. Furthermore, both incident reports state that the

patrons said they tripped and misstepped on the stairs, not that they slipped or were confused

about where the stairs ended as the plaintiff here claims (see Ex. B to Plaintiffs Opp).

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Accordingly, even if the court could consider the contents of the incident reports, those contents

do not describe similar enough accidents to plaintiff's as to raise a triable issue of fact regarding

the defendant's constructive notice of an allegedly dangerous condition on the stairs. Defendant

is therefore entitled to summary judgment dismissing plaintiff's complaint against it.

V. Conclusion

Accordingly, it is

ORDERED that defendant's motion for summary judgment is granted.

The clerk shall enter judgment accordingly.

SHi?OMO S. HAGLER, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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