In Stubbs v. 350 E. Fordham Rd., LLC, decided May 29, 2014, the Appellate Division, First Department reinstated plaintiff’s common-law negligence claim.
Plaintiff “was standing on the sidewalk in front of the two-story building located at 350 East Fordham Road when part of the stucco siding on the building fell off the facade and struck her.”
The court initially denied plaintiff leave to amend her bill of particulars to add violations of section 28-301.1 and former section C26-352.0 of the Administrative Code of the City of New York, since she “did not seek leave to add such allegations until over two years after commencement of the action, and eight months after the note of issue had been filed.” In any event, those statutes were inapplicable:
There is no basis to impose liability under section 28-301.1, which “imposes a general duty on owners to maintain their premises and does not specifically address the alleged structural defect at issue”. Here, while Administrative Code § 28-302.1 requires maintenance of “exterior walls,” that provision applies only to “buildings greater than six stories.” Administrative Code § C26-352.0 is inapplicable because the facade of the building was not an “exposed structure; on the top; of [the]; building.”
However, the court reinstated plaintiff’s common-law negligence claim:
While defendant established that it did not create or have actual notice of any defect in the facade, it failed to establish that it exercised reasonable care in maintaining the facade of the building through a program of inspection. Defendant’s managing member testified only that he would observe the exterior facade of the building as he walked past the building, and plaintiff’s engineer opined that even a cursory inspection would have disclosed the issues that required repair. Thus, the record presents an issue of fact as to whether defendant exercised reasonable care in maintaining the facade, and whether constructive notice may be imputed.
Finally, “while plaintiff may be entitled to invoke the doctrine of res ipsa loquitur at trial … since the inference of negligence arising from plaintiff’s circumstantial proof is not inescapable, she is not entitled to partial summary judgment in her favor.”