| Baker v Roman Catholic Church of the Holy See |
| 2016 NY Slip Op 01407 |
| Decided on February 25, 2016 |
| 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 February 25, 2016
Friedman, J.P., Sweeny, Saxe, Gische, JJ.
324 113884/11
v
Roman Catholic Church of the Holy See, Defendant, Holy Cross Church, Defendant-Respondent.
Taubman Kimelman & Soroka, LLP, New York (Antonette M. Milcetic of counsel), for appellant.
Leahey & Johnson, P.C., New York (Joanne Filiberti of counsel), for respondent.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered November 25, 2014, which granted the motion of defendant Holy Cross Church for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Defendant established its entitlement to judgment as a matter of law in this action where plaintiff was allegedly injured when she tripped and fell on the stairs as she exited defendant church. Defendant submitted photographs and an expert's affidavit showing that the two-stair staircase was open and obvious and not inherently dangerous (see Tagle v Jakob, 97 NY2d 165 [2001]; Franchini v American Legion Post, 107 AD3d 432 [1st Dept 2013]). Moreover, since plaintiff was not looking down when she fell, and saw the yellow markings on the stair's riser after her fall, there is no evidence that optical confusion caused the accident (see Langer v 116 Lexington Ave., Inc., 92 AD3d 597, 599 [1st Dept 2012], lv denied 24 NY3d 907 [2014]).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's expert did not show how the stair was inherently dangerous or constituted a hidden trap (see Burke v Canyon Rd. Rest., 60 AD3d 558 [1st Dept 2009]). The expert's opinion that defendant was obligated to replace the small step with a ramp and install a handrail at the location does not warrant a different determination, as he failed to set forth a violation of any specific industry-wide safety guideline in effect at the time of the church's construction more than 140 years ago and prior to the adoption of the building codes (see Sakol v Kirsch, 25 AD3d 523 [1st Dept 2006]).
Furthermore, even if the step configuration was actionable, plaintiff's testimony did not connect her fall to either of the alleged defects, i.e., the short step or the handrail. She testified that she fell when her foot caught on a defect in the step. She did not miss the step due to being unaware of its
existence, nor was there any testimony that she reached out for a handrail to catch her fall (see Daniarov v New York City Tr. Auth., 62 AD3d 480 [1st Dept 2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 25, 2016
CLERK