Preview
FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023
FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023
ASPA Engineering LLC
Civil and Forensic Engineering Telephone (347) 635-5090
Real Estate Inspection Valuation Advisors E-mail: rsherbansky@AspaGroup.com
50 Webster Avenue, Suite 1-J, New Rochelle, NY 10801 Website: www.AspaGroup.com
October 26, 2023
Phillip E. Waknin, Esq.
The Gold Law Firm, PC
1666 Newbridge Road, Floor 2
North Bellmore, N.Y. 11710
Re: Najah Stevens v. IRT Partnership & SDHR Management
Premises: 227 Thomas S. Boyland Street, Brooklyn, NY, 11233
Date of Incident: August 16, 2017 @ 4:30 AM. Index No.: 521039/2017
Dear Mr. Waknin;
1. This matter is pertaining to a slip,
trip and fall incident in which the
plaintiff claims that while ascending
the stairs between the ground floor
and second floor, her foot got
caught on a torn carpet on about
the 4th step from the top of the
stairs, she tried to grab for a
handrail and it wasn’t there, causing
her to slip, trip and fall backwards
and sustain an ankle injury. The incident occurred at the building located at 227
Thomas S. Boyland Street, Brooklyn, NY (“subject premises” or “building”).
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FACTUAL BACKGROUND:
2. The incident occurred on August 16, 2017, at approximately 4:30 AM1. The
plaintiff lived on the 2nd floor apartment #2 of the building and was a tenant in the
apartment since April 1, 2007, or about 10 years prior to the accident (see page
pg. 8 of plaintiff’s deposition transcript).
3. The subject premises is a 3-story masonry building, which was originally built in
the 19th century containing three residential apartments. According to the
attached copies of HPD I-Cards and HPD building registration records, the
building is classified as a “Heretofore Erected - O.L.”, HPD Class “A”, defined as
a structure which was built in compliance with the Old Tenement Law of 1879.
PLAINTIFF’S DEPOSITION
4. At her deposition on 7/24/2019, the plaintiff testified that the incident occurred at
4:30am as she came back to her apartment from a party and was coming up the
stairs with her nephew behind her (pg 14). Plaintiff was walking up the stairs
while holding on to the railing. When she got to the last top of the stairs, the light
was kind of dim, she went to make a turn, there’s no railing so she was looking to
see to grab and her left foot got caught in the carpet. –pg 16.
5. The plaintiff stated that the incident occurred about 4 steps from the top (pg. 19).
The plaintiff stated that she saw what caused her to fall to be a torn carpet (pg. 19-
20). After her foot got caught in the carpet she tried to reach and grab but there
was no more railing so as she was trying to grab the railing she fell backwards
(pg. 22-23). The plaintiff stated that when she was ascending the stairs before her
1
See paragraph 5 of plaintiff’s Verified Bill of Particulars, dated 9/9/2021.
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foot got caught on the step, she was looking straight ahead (pg. 18). The plaintiff
stated that she lived in the subject premises, apartment 2 since April 1, 2007 (pg
8.) and used the subject stairwell many times (pg. 51).
6. The plaintiff made several statements in describing the light at the time of the
incident to be “kind of dim” and also stating that there was no lighting at all going
up the stairwell, it was dark (pg. 16-17). The plaintiff stated that at the time of
the incident, the bulb at the top of the staircase was out and the bulb at the bottom
landing was still working and she was able to see a shadow of the carpet tear (pg.
50-51). The plaintiff testified that usually the light in the stairwell would
normally be on, “but the bulb was blew for like a month.” The plaintiff notified
the landlord about the light bulb and torn carpet about a month or 2 before the
accident and nothing was done (pg. 52-53). The torn carpet condition existed for
as much as six months before the accident (pg. 54).
VERIFIED BILL OF PARTICULARS:
7. The Bill of Particulars states that the accident occurred on August 16 2017 while
plaintiff was attempting to descend from her second floor apartment at 227
Thomas S Boyland St. apt 2 Brooklyn NY 1123 at approximately 11:30 PM.
Plaintiff was caused to slip, trip and fall on the subject interior staircase due to the
dangerous and defective staircase, torn carpeting and/or broken hand railing
conditions existing thereon.
8. The Bill of Particulars claims in among other things, that the defendants, their
agents, tenants, leasees, servants and/ or employees, were negligent in causing,
creating, permitting and/or allowing the known defective/dangerous staircase, torn
carpeting and/or hand railing conditions to exist at the aforesaid location; in
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failing to timely inspect said defective stairway, carpeting and/or hand railing
conditions existing the time and place of the incident despite actual knowledge of
said hazardous conditions and/or that same existed for a reasonable length of time
prior to plaintiffs incident; in failing to warn the plaintiff of the reasonably well
known and/or foreseeable dangers which were occurring, and reoccurring prior to
the happening of plaintiffs incident at the subject location;
9. The Bill of Particulars also claims that the defendants were negligent in
permitting, allowing, causing and or, hazardous torn carpeting, defective hand
railing and/ or poor lighting conditions to exist upon the aforesaid interior
stairway without due regard for the safety of the plaintiff; failing to timely
remedy, repair, cure and/ or otherwise inspect the aforesaid defective condition
within a reasonable time; in failing to timely so as to remedy said the fact of
conditions despite due and or timely notice thereof; in negligently undertaking to
effectuate and/ or cause to be affected, inadequate prior remedial efforts, and/or
repair then and there existing in failing to erect any warning notices, hazard
signage, cones, hazard tape, and so as to prevent picking up on said defective
stairway and/or becoming alluded to the hazardous conditions then and there;
SITE VISITS TO THE PLACE OF OCCURRENCE:
10. On September 19, 2023, I made a site visit to the subject place of occurrence in
order to observe, measure and photograph the subject staircase between the
second and ground floor levels of the building and conditions thereto.
Photographs taken at the time of my site visits are attached hereto. The plaintiff
testified that while going upstairs, she slipped or tripped on or about the fourth
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step2 from the top landing of the staircase between the 2nd floor landing and the
first/ground floor public stairway of the building, which is shown in the attached
site visit photos (“place of occurrence”).
11. The plaintiff’s photographs depicting the location of the accident were attached to
the plaintiff’s Post Deposition Demands, dated 9/10/2019. Since the date that the
plaintiff’s photographs were taken is unknown, it is not possible to verify whether
the conditions of the stair carpeting, handrail and lighting that existed at the time
of the accident (8/17/2017) were substantially the same as the conditions existing
at the time of my site visit (9/19/2023), as well as at the time of plaintiff’s expert
inspection (November 7, 2022).
Plaintiff’s Photo dated 9/10/2019. Site visit photo #42, dated 9/19/2023.
2
See page 19 of plaintiff’s deposition transcript, dated 7/24/2019.
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12. Nonetheless, based on comparison between my site visit photos and the attached
copies of the plaintiff’s photographs depicting the location of the accident which
were attached to the plaintiff’s Post Deposition Demands, dated 9/9/2019, I
concluded that the physical layout and shape of the staircase, stairway enclosure
and stair framing remained substantially the same, except for carpet wear and tear
over time and except for transient conditions, such as ambient moisture, dust and
lighting levels. Note that the purported handrail arrangement at the fourth step
from the top is not depicted in the plaintiff's photographs and cannot be compared
to the handrail photographs taken at the time of my site visit.
13. Based on review of the public records of the building and comparison of the style
of the existing winding stairs and railing with newel posts, spindles, materials and
shape with other similar old tenement buildings, I concluded that the design of the
staircase with winding steps is consistent with the typical design of staircases
constructed in the 1800s under the Old Tenement Law of 1879.
14. The 29.75” inches wide, wood framed staircase from the second to ground floor
has 15 steps with beige colored carpet surface on the treads and risers including 2
winding steps at the top of the staircase. The winding steps have varying tread
depths by design in order to accommodate the change in direction of the staircase
by 90 degrees. The top and bottom stair landings and hallways floors are
composed of laminated or linoleum surface with a light wood color and pattern of
wood plank floors. The height of the wood guard railing above the 2nd floor
landing is approximately 32.5” inches (plus/minus ½ of an inch). The guard
railing on the second floor hallway terminate at a newel post which is 3.25” by
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3.25 square wood post that extends approximately 33.5” inches above finished
floor (plus minus ¼ “of an inch).
15. Based on her testimony and verified Bill of Particulars the plaintiff slipped or
tripped with her left foot and stated that her foot got caught on a tear in the rug on
about the 4th step3. Since the plaintiff testified that at the time of the incident, she
was ascending the stairs, I measured the dimensions of the stairs at and below the
top 4th step of the staircase that were relevant to the plaintiff’s slip/trip incident
The carpeted tread depths of the straight stairs from the 4th step from the top to the
bottom step were measured to be approximately 10.125” inches with variation in
tread depths of approximately 0.375” of an inch or less, except for the bottom step
which had a tread depth of 10.5” inches. It should be noted that the carpeting
surface has an inherent material softness quality that when the carpet is pressed
upon, it will expand and contract by 0.125-0.25” of an inch. Therefore slight
variations in exact measurements are caused by the inherent deflection or flex
character of carpeting surfaces.
16. The riser heights below the 4th step were measured to be approximately 8” inches
in height with variation in tread depths of approximately 0.375” of an inch or less.
While taking measurements, it was noted that the carpeting surface has an
inherent material softness quality that when the carpet is pressed upon, it will
normally expand, deflect or depress by 0.125-0.25” of an inch. Therefore, there
are trivial or insignificant deflections or depressions in the carpeting surface on
3
See page 19 of plaintiff’s deposition transcript, dated 7/24/2019.
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the treads and risers due to the inherent material softness quality of carpeting
material such as the subject.
17. I also measured the dimensions of the 3rd step from the top which contains a
carpet rip on its tread surface. This 3rd tread depth was constructed by design to
accommodate for the two winding steps above. The third step from the top has a
tread depth of 3” inches on the left side and 18.25” inches on the right side with a
riser height of approximately 8” inches (plus minus 1/4” of an inch).
18. At the time of my site visit, I observed a torn piece of carpeting on the stair tread
of the 3rd step from the top, as shown in my attached site visit photographs. There
were no carpeting tears on the stair tread of the 4th step from the top. The torn
piece of carpeting on the 3rd step from the top measured approximately 4” in
length by about 2” inches in width and formed a surface depression of
approximately 0.125” (1/8”) of an inch deep. As previously indicated, it is not
known whether the carpet tear observed at the time of my site visit and at the time
of plaintiff’s inspection was the same size and shape that existed at the time of the
accident and to what extent did the tear alter or changed in size and shape as result
of the plaintiff’s incident itself.
19. The wood handrail on the left side of the staircase going up has a height of
approximately 36” inches above stair nosing (plus minus 0.5“of an inch). The
original design of the staircase railing is such that the handrail terminates at the
2nd floor level, which is the 5th step from the top landing and connects with a
horizontal wood framing member that is attached to the top newel Post of the
staircase. The design of the subject railing system is such that when a person
reaches the fifth step from the top, they are able to reach or grab the top Newell
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post which is about 12”inches away from the fourth step in several positions, as
well as able to reach/grab and hold the wood balustrades of the railing above in
several ways, enabling the user to support themselves in ascending the last two
winding steps of the staircase. This handrail termination design in a winding
staircase and its connection to newel posts at the center of the winding or spiraling
top steps was a typical handrail design during the 19th century (1800s) at the time
that the subject premises was built.
20. The plaintiff stated that just before the incident she was holding on to the railing
until she got to the top of the stairs and there was no railing4. The wood handrail
was found to be well-secured to its point of termination at the framing of the
second-floor framing and frame connection to the top newel post and balustrades
that is consistent with the architectural style and design used in the 1800s (see
attached photos). The 3.25” inches-by-3.25” inches square wooden newel posts at
the top of the staircase terminates approximately 8” inches away from the nosing
of the 4th step from the top and approximately 3 inches in front of the nosing of
the 3rd step from the top (plus minus ¼“ of an inch).
21. The incident occurred about 4:30 AM and artificial lighting of the stairway
consists of a ceiling mounted, 2-bulb light fixture on each floor level. At the time
of my site visit, there were two (2) high-efficiency light bulbs in the light fixture
on the first floor and one (1) light bulb in the light fixture on the second-floor
level. Since the plaintiff testified that at the time of the incident, there was no
4
See page 16 of plaintiff’s deposition transcript, dated 7/24/2019.
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light at all on the second-floor level, any measurements at the time of my site visit
(and at the time of plaintiff’s inspection) would not be the same as the lighting
levels that existed at the time of the incident. Additionally, the light intensity also
depends on the number of light bulbs in each fixture and the bulbs’ wattage
present in the light fixture on each floor at the time of the incident.
22. During the daytime, natural lighting in the stairway is provided by a glass skylight
on the third floor/roof level directly above the stairway, as well as a fixed glass
pane at the first-floor entrance door.
CITY INSPECTIONS RECORDS:
23. There were no HPD Violation Notices pertaining to the subject stairs and place of
occurrence. Based on the HPD Certificate of Inspection Visits posted in the
entrance foyer of the building, HPD inspections were conducted in the building in
May 2013 and February 2018 (see attached site visit photo #2). Additionally,
based on review of the online public property records by HPD (copies attached)
there were four (4) violation notices pertaining to the building entrance doors and
fire escape based on building inspections on 6/24/2012 and 3/6/2018.
24. Based on the attached copy of the NYC DOB Property Profile Overview, there
were no recorded DOB and ECB Violation Notices issued against the building.
25. The NYC Housing Authority conducted an inspection of the plaintiff’s apartment
on 3/1/2017. No violation notices pertaining to the place of occurrence were
issued. Based on the attached copies of the NYC Housing Authority record
entitled Certification of Completed Repairs, although several housing quality
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standards violations were identified in plaintiff’s apartment, including loose or
torn floor covering, no violation notices were issued at the place of occurrence.
INFORMATION REVIEWED
In the process of making my opinion, conclusions and findings herein, I performed the following
actions and reviewed the following documents:
a) Site visit on September 19, 2023, to observe, measure and photograph the subject staircase
and place of occurrence at 227 Thomas S. Boyland Street, Brooklyn, NY. 11233
b) Review of plaintiff’s Summons & Verified Complaint dated 10/30/2017 (6 pages).
c) Review of plaintiff's Bills of Particulars, dated 10/26/2018 (7 pages).
d) Review of plaintiff's Further Bills of Particulars, dated 4/25/2019.
e) Review of plaintiff's Response to Post Deposition Demands including 4 color
photographs in Exhibit A dated 9/9/2019 (12 pages).
f) Review of Plaintiff’s Deposition Transcripts dated 7/24/2019 (67 pages).
g) Review of Response Pursuant to CPLR 3101(d) by Engineering Expert, Scott Silberman,
P.E. dated 4/27/2023, without the expert report (32 pages).
h) Review of the property's I-cards of the subject premises by the NYC Department of
Housing Preservation & Development (HPD).
i) Review applicable NYC Building Code and public online records of this building.
j) Review NOAA (National Climatic Data Center) weather report dated 07/2017 for
Laguardia Airport, New York, NY (WBAN) (copy attached).
k) Review of public online records of the subject property, NYC online Tax map of the
property (copy attached), as well as any available records of complaints and violation
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notices (if any) by the NYC Department of Buildings (DOB), NYC Department of Housing
Preservation & Development (HPD) and the Environmental Control Board (ECB).
ANNECIA WI SUMMARY OF FINDINGS AND CONCLUSIONS:
26. Based on my site observations, photographs, review of case documents, review of
the totality of the information available in this case, and as described in further
details in the body of this report, I made the following findings and conclusions:
27. Overall, the subject wood framed stairway with the winding stair treads is part of
the original construction of the building that was built in about 1800s and at the
time of my site visit, the structural design and construction of the place of
occurrence was found to be in conditions that are consistent with the standards of
construction, design and style of such staircases built in the 1800s in a 3-family
old law tenements of this size, type and age, subject to wear and tear.
28. The stairway structure was equipped with a well-secured handrail on the left side
that terminates by design with a newel post approximately 3” inches in front of
the nosing of the 3rd step and 8” inches behind the nosing of the 4th step from the
top, consistent with the standards of construction, design and style of such
staircases built in the 1800s in a 3-family residential building of this size, type and
age. The design of this staircase is such that its winding stairs spiral around the
top newel post which is at the center of the radius of the winding stairs and
therefore allow a person using the stairs to grab the newel post or adjacent
guardrail and balustrades for hand support in going up while turning the last set of
winding stairs. The straight handrail in the lower portion of the staircase was
designed for hand support while going up the straight set of steps in the staircase
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while the top newel post, balustrades and guardrail of the 2nd floor hallway was
designed to provide hand support in going up while turning the last set of winding
stairs.
29. This staircase was built in the 19th century during the 1800s and therefore the
plaintiff’s claims that the staircase violated an overwhelming number of design
provisions of the 1916-2014 Building Codes are inapplicable to the design and
construction of the subject winding stairs which were built prior to the effective
date of these Building Codes. The purported violations of the rules for handrail
construction pertain to handrails of straight staircases not to handrails of winding
stairs such as the subject from the 1800s. Notably, section 151 of the 1916
Building Code and § C26-272.0 of the 1938 Building Code state that the 1916-
1938 codes are not applicable to tenement houses and multiple dwellings such as
the subject.
30. Based on the facts discussed in detail below, there was no significant structural or
design defect at the place of occurrence that is contrary to a specific applicable
NYC Building Code provision or standard and that caused the subject slip or trip
incident. The purported torn carpeting and insufficient lighting on the steps are
considered to be non-structural conditions not structural or design defects of the
stairs. Similarly, the purported inadequate handrail length is also not a structural
defect that a owner who does not live in the building is responsible for. The
purported violations of the structural design and construction provisions of the
Building Code including handrail design are inapplicable to the subject premises
and the incident, as discussed in detail below.
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PLAINITT’S EXPERT REPORT:
31. The comments below are provided as my opinion in review of the underlined
claims made by the plaintiff’s expert (S. Silberman PE) which were contained in
plaintiff’s Response to the Defendants’ Demand for Expert Disclosure Pursuant to
CPLR 3101(d). It should be noted that none of these alternative theories of the
cause of the accident are the purported code violations asserted by plaintiff’s
expert below are specified in the Verified Bill of Particulars:
A. That the long-standing rip in the carpet created a dangerous condition and tripping
hazard; Comment: This opinion that the rip in the carpet was a long-standing
condition that created a dangerous hazardous conditions in the stairwell is speculative on
multiple levels because:
• There is no disclosure in the subject document of whether the carpet
conditions and the rip in the carpet that existed at the time of the accident
(8/17/2017) were substantially the same as the conditions existing at the
time of plaintiff’s expert inspection (November 7, 2022), which is more
than five (5) years after the accident. It’s just an assumption.
• The plaintiff’s photographs of the place of occurrence are not dated and
authenticated to be the same carpet conditions that existed on the day of
the incident. It’s just an assumption.
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• The plaintiff testified that she could barely see a shade of the rip in the
carpet and therefore the length, width and shape of the tear in the carpet
just before the accident was unknown.
• The plaintiff stated that she lived in the building for about 10 years before
the incident5 and has been using the same staircase without an incident.
There were no other reported incidents, except for the subject single
isolated event. The claim that the carpet rip created a long-standing
dangerous and hazardous condition is speculative.
• Even if we assume that the size and shape of the carpet rip was “a long-
standing” conditions that existed at the time of the incident, the plaintiff
testified the incident occurred on about the 4th step from the top, whereas
the carpet rip depicted in plaintiff’s photographs occurred on the 3rd step
from the top landing. Additionally, the plaintiff stated that it was dark in
the stairs and she could barely see the shadow of the carpet rip. Therefore,
the plaintiff’s claim that the carpet rip on the 3rd step caused her to trip in
the dark is speculative and it is just as probable that the plaintiff tripped on
the 4th step from the top which had no carpet rips claimed and no carpet
rips shown in plaintiff’s photographs.
B. That the lighting conditions were not sufficient and created a dangerous condition and
tripping hazard; Comment: The opinion that the lighting conditions were not
sufficient is also speculative because:
5
See page 8 of plaintiff’s deposition transcript, dated 7/24/2019.
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• Based on the same facts described in paragraph a above.
• Additionally, there are no disclosed lighting measurements (in foot-
candles) to establish that the lighting levels were insufficient.
• The number of bulbs and bulb wattage that existed at the time of the
incident is unknown, making it impossible to verify the lighting intensity
at the time of plaintiff’s inspection and at the time of my inspection, more
than 5 years after the incident.
• It is unknown whether the owner was aware of the burnt light bulb
condition claimed and whether the owner had enough time to replace the
bulb. Section 27-2053 of the Housing Maintenance Code provides an
exception for this 3-family dwelling from the requirement of providing
janitorial service and repairs on a continuous 24-hours x 7-days a week
basis. Additionally, Sub-section 37(2) of the Multiple Dwelling Law
(MDL) provide an exception to the owner’s responsibility to keep hallway
lighting and states that: “…but if it becomes extinguished and remains so
without the knowledge or consent of the owner he shall not be liable. The
burden shall be upon the owner to show that the light became and
remained extinguished without his knowledge or consent.”
• i.e. The homeowner of a small building with less than nine (9) apartments
is only expected to visit the premises and provide janitorial services on a
periodic basis. The owner is not in exclusive control of the use of the
subject stairs and therefore without any notice, the homeowner is not
expected by any industry standards or Codes to be continuously on the
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watch or be aware of the conditions of the staircase on 24 hours a day
basis.
C. That the handrail stopped prior to the step where she fell and therefore there was no
graspable handrail at the location of the fall and such was negligence;
Comment: The opinion that there was no graspable handrail “and such was
negligence” is a legal type of an opinion which is unsupported from a design perspective
by an engineering expert (including myself). As discussed in detail below, there are no
violations of the applicable Building Code regarding the purported early handrail
termination or handrail graspability:
• The early termination of the subject handrail was no design defect and instead
the handrail was designed and constructed to terminate at the second-floor
framing members level that are connected to the newel post, which starts at the
stair tread level of the 4th step from the top. This early handrail termination
occurs by design just before reaching the winding stairs that wind or spiral with a
radius around the newel post above, such that a person can climb up the winding
stairs by holding onto the newel post or holding onto the balustrade and other
framing members of the second floor, as shown in that attached photographs
taken at the time of my site visit.
• The opinion that early handrail termination at newels is dangerous or hazardous
condition is not supported by the design code provisions. Even in more modern
commercial buildings that were built after the date of the subject premises, early
handrail termination at newel posts was permitted by Code. For example,
Section 153(6) of the 1916 Building Code and Sub-section §C26-292.0 (L) of the
1938 Building Code permits upper handrail termination at newels. The more
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modern 2008-2020 Building Codes provide for full-length handrails and handrail
extensions at landings that are safer for handicap accessibility. This does not
mean that early handrail termination with a newel post in a winding or spiraling
staircase built in the 1800s is a dangerous or hazardous design for the building
owner to maintain.
• As discussed in detail below the Building Code permits owners of buildings such
as the subject, which were built in the 1800s to be maintained in the same
conditions and requirements that existed at the time the building was built,
including sections 27-105 and 27-111 of the 1968 Building Code. Based on the
attached copy of the NYC DOB Property Profile Overview, there are no prior
Alterations job filings recorded for the building.
D. That the riser heights were not uniform and therefore created a tripping hazard;
Comment: The opinion that the non-uniformity of the stair riser heights created a
tripping hazard is unconnected to the cause of the incident and the purported claim of
varying riser heights is not a type of structural defects that an owner who does not live in
the building is responsible for. There is no testimony that the plaintiff mis-stepped due
to riser height variation. Instead, the plaintiff testified that the incident happened
because her shoe got caught in the torn carpet and because she could not grab a handrail.
There is no claim of a riser height uniformity violation of the applicable code when the
staircase was built in the 1800s.
E. That the tread widths were also not uniform and not sufficient width to hold a foot which
is a dangerous and defective condition; Comment: Similarly, the opinion that the
non-uniformity of the stair tread widths created a tripping hazard is unconnected to the
cause of the incident and the purported claim of varying tread widths is not a type of
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NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023
structural defects that an owner who does not live in the building is responsible for.
There is no testimony that the plaintiff mis-stepped due to tread width variation.
Instead, the plaintiff testified that the incident happened because her shoe got caught in
the torn carpet in the dark and because she could not grab a handrail. There is no claim
of a tread width uniformity violation of the applicable code when the staircase was built
in the 1800s.
F. That the stairs do not conform with the voluntary guidelines of the Standard Practice for
Safe Walking Surfaces (ASTM F1637) published by the American Society of Testing
Materials; While this standard may not be a statutory requirement in New York City,
this industry standard reflects the good and accepted practice for providing a safe
walking surface; Comment: To date, the opinion is unsupported because there are no
sub-sections being specified in the expert disclosure document, no specific safety
provisions raised and because the date that the purported voluntary standard of ASTM
F1637 was published is unspecified. Obviously, if the purported voluntary standard was
published after the year 2000, more than 100 years after the staircase was built, there is
no way that the owner could “conform” and benefit from this construction standard.
The claim is also unsupported because there is no evidence that the purported ASTM F
1637 guidelines were the “Published Generally Accepted Standards” that were accepted
by the New York City’s construction industry and should have been adopted and
conformed with by the homeowner (IRT Partnership). The opinion that the stairs should
conform with ASTM F1637 standard suggests that the owner should have built and
maintained the building by a higher standard of care that transcends the applicable
Building Code.
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G. Ascending and/or descending a stairway is an even more complicated bio-mechanical
activity and the deviations from the construction standards noted here are dangerous
defects that increase the likelihood of a loss of balance and a fall; Comment: There is
no testimony that the plaintiff lost her balance or any connection to the bio-mechanical
activity of the plaintiff. Instead, the plaintiff testified that the incident happened because
her shoe got caught in the torn carpet in the dark and because she could not grab a
handrail. Additionally, since the non-compliance with bio-mechanical principals and
musculoskeletal activity of a walking person are medical opinions beyond the expertise
of the plaintiff’s expert as a civil engineer, as well as beyond my expertise, this opinion
does not establish any failure of the defendants owner and management that caused
defective bio-mechanical activity by the plaintiff and as result caused the accident with a
reasonable of certainty of a bio-mechanical medical expert.
H. That the stairs do not conform with the voluntary guidelines of the “Pedestrian Falling
Accidents in Transit Terminals”, a 1985 Federal Transit Administration study performed
by the Port Authority of New York and New Jersey and funded by the United States
Dep
Preview
FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 ASPA Engineering LLC Civil and Forensic Engineering Telephone (347) 635-5090 Real Estate Inspection Valuation Advisors E-mail: rsherbansky@AspaGroup.com 50 Webster Avenue, Suite 1-J, New Rochelle, NY 10801 Website: www.AspaGroup.com October 26, 2023 Phillip E. Waknin, Esq. The Gold Law Firm, PC 1666 Newbridge Road, Floor 2 North Bellmore, N.Y. 11710 Re: Najah Stevens v. IRT Partnership & SDHR Management Premises: 227 Thomas S. Boyland Street, Brooklyn, NY, 11233 Date of Incident: August 16, 2017 @ 4:30 AM. Index No.: 521039/2017 Dear Mr. Waknin; 1. This matter is pertaining to a slip, trip and fall incident in which the plaintiff claims that while ascending the stairs between the ground floor and second floor, her foot got caught on a torn carpet on about the 4th step from the top of the stairs, she tried to grab for a handrail and it wasn’t there, causing her to slip, trip and fall backwards and sustain an ankle injury. The incident occurred at the building located at 227 Thomas S. Boyland Street, Brooklyn, NY (“subject premises” or “building”). 1 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 FACTUAL BACKGROUND: 2. The incident occurred on August 16, 2017, at approximately 4:30 AM1. The plaintiff lived on the 2nd floor apartment #2 of the building and was a tenant in the apartment since April 1, 2007, or about 10 years prior to the accident (see page pg. 8 of plaintiff’s deposition transcript). 3. The subject premises is a 3-story masonry building, which was originally built in the 19th century containing three residential apartments. According to the attached copies of HPD I-Cards and HPD building registration records, the building is classified as a “Heretofore Erected - O.L.”, HPD Class “A”, defined as a structure which was built in compliance with the Old Tenement Law of 1879. PLAINTIFF’S DEPOSITION 4. At her deposition on 7/24/2019, the plaintiff testified that the incident occurred at 4:30am as she came back to her apartment from a party and was coming up the stairs with her nephew behind her (pg 14). Plaintiff was walking up the stairs while holding on to the railing. When she got to the last top of the stairs, the light was kind of dim, she went to make a turn, there’s no railing so she was looking to see to grab and her left foot got caught in the carpet. –pg 16. 5. The plaintiff stated that the incident occurred about 4 steps from the top (pg. 19). The plaintiff stated that she saw what caused her to fall to be a torn carpet (pg. 19- 20). After her foot got caught in the carpet she tried to reach and grab but there was no more railing so as she was trying to grab the railing she fell backwards (pg. 22-23). The plaintiff stated that when she was ascending the stairs before her 1 See paragraph 5 of plaintiff’s Verified Bill of Particulars, dated 9/9/2021. 2 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 foot got caught on the step, she was looking straight ahead (pg. 18). The plaintiff stated that she lived in the subject premises, apartment 2 since April 1, 2007 (pg 8.) and used the subject stairwell many times (pg. 51). 6. The plaintiff made several statements in describing the light at the time of the incident to be “kind of dim” and also stating that there was no lighting at all going up the stairwell, it was dark (pg. 16-17). The plaintiff stated that at the time of the incident, the bulb at the top of the staircase was out and the bulb at the bottom landing was still working and she was able to see a shadow of the carpet tear (pg. 50-51). The plaintiff testified that usually the light in the stairwell would normally be on, “but the bulb was blew for like a month.” The plaintiff notified the landlord about the light bulb and torn carpet about a month or 2 before the accident and nothing was done (pg. 52-53). The torn carpet condition existed for as much as six months before the accident (pg. 54). VERIFIED BILL OF PARTICULARS: 7. The Bill of Particulars states that the accident occurred on August 16 2017 while plaintiff was attempting to descend from her second floor apartment at 227 Thomas S Boyland St. apt 2 Brooklyn NY 1123 at approximately 11:30 PM. Plaintiff was caused to slip, trip and fall on the subject interior staircase due to the dangerous and defective staircase, torn carpeting and/or broken hand railing conditions existing thereon. 8. The Bill of Particulars claims in among other things, that the defendants, their agents, tenants, leasees, servants and/ or employees, were negligent in causing, creating, permitting and/or allowing the known defective/dangerous staircase, torn carpeting and/or hand railing conditions to exist at the aforesaid location; in 3 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 failing to timely inspect said defective stairway, carpeting and/or hand railing conditions existing the time and place of the incident despite actual knowledge of said hazardous conditions and/or that same existed for a reasonable length of time prior to plaintiffs incident; in failing to warn the plaintiff of the reasonably well known and/or foreseeable dangers which were occurring, and reoccurring prior to the happening of plaintiffs incident at the subject location; 9. The Bill of Particulars also claims that the defendants were negligent in permitting, allowing, causing and or, hazardous torn carpeting, defective hand railing and/ or poor lighting conditions to exist upon the aforesaid interior stairway without due regard for the safety of the plaintiff; failing to timely remedy, repair, cure and/ or otherwise inspect the aforesaid defective condition within a reasonable time; in failing to timely so as to remedy said the fact of conditions despite due and or timely notice thereof; in negligently undertaking to effectuate and/ or cause to be affected, inadequate prior remedial efforts, and/or repair then and there existing in failing to erect any warning notices, hazard signage, cones, hazard tape, and so as to prevent picking up on said defective stairway and/or becoming alluded to the hazardous conditions then and there; SITE VISITS TO THE PLACE OF OCCURRENCE: 10. On September 19, 2023, I made a site visit to the subject place of occurrence in order to observe, measure and photograph the subject staircase between the second and ground floor levels of the building and conditions thereto. Photographs taken at the time of my site visits are attached hereto. The plaintiff testified that while going upstairs, she slipped or tripped on or about the fourth 4 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 step2 from the top landing of the staircase between the 2nd floor landing and the first/ground floor public stairway of the building, which is shown in the attached site visit photos (“place of occurrence”). 11. The plaintiff’s photographs depicting the location of the accident were attached to the plaintiff’s Post Deposition Demands, dated 9/10/2019. Since the date that the plaintiff’s photographs were taken is unknown, it is not possible to verify whether the conditions of the stair carpeting, handrail and lighting that existed at the time of the accident (8/17/2017) were substantially the same as the conditions existing at the time of my site visit (9/19/2023), as well as at the time of plaintiff’s expert inspection (November 7, 2022). Plaintiff’s Photo dated 9/10/2019. Site visit photo #42, dated 9/19/2023. 2 See page 19 of plaintiff’s deposition transcript, dated 7/24/2019. 5 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 12. Nonetheless, based on comparison between my site visit photos and the attached copies of the plaintiff’s photographs depicting the location of the accident which were attached to the plaintiff’s Post Deposition Demands, dated 9/9/2019, I concluded that the physical layout and shape of the staircase, stairway enclosure and stair framing remained substantially the same, except for carpet wear and tear over time and except for transient conditions, such as ambient moisture, dust and lighting levels. Note that the purported handrail arrangement at the fourth step from the top is not depicted in the plaintiff's photographs and cannot be compared to the handrail photographs taken at the time of my site visit. 13. Based on review of the public records of the building and comparison of the style of the existing winding stairs and railing with newel posts, spindles, materials and shape with other similar old tenement buildings, I concluded that the design of the staircase with winding steps is consistent with the typical design of staircases constructed in the 1800s under the Old Tenement Law of 1879. 14. The 29.75” inches wide, wood framed staircase from the second to ground floor has 15 steps with beige colored carpet surface on the treads and risers including 2 winding steps at the top of the staircase. The winding steps have varying tread depths by design in order to accommodate the change in direction of the staircase by 90 degrees. The top and bottom stair landings and hallways floors are composed of laminated or linoleum surface with a light wood color and pattern of wood plank floors. The height of the wood guard railing above the 2nd floor landing is approximately 32.5” inches (plus/minus ½ of an inch). The guard railing on the second floor hallway terminate at a newel post which is 3.25” by 6 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 3.25 square wood post that extends approximately 33.5” inches above finished floor (plus minus ¼ “of an inch). 15. Based on her testimony and verified Bill of Particulars the plaintiff slipped or tripped with her left foot and stated that her foot got caught on a tear in the rug on about the 4th step3. Since the plaintiff testified that at the time of the incident, she was ascending the stairs, I measured the dimensions of the stairs at and below the top 4th step of the staircase that were relevant to the plaintiff’s slip/trip incident The carpeted tread depths of the straight stairs from the 4th step from the top to the bottom step were measured to be approximately 10.125” inches with variation in tread depths of approximately 0.375” of an inch or less, except for the bottom step which had a tread depth of 10.5” inches. It should be noted that the carpeting surface has an inherent material softness quality that when the carpet is pressed upon, it will expand and contract by 0.125-0.25” of an inch. Therefore slight variations in exact measurements are caused by the inherent deflection or flex character of carpeting surfaces. 16. The riser heights below the 4th step were measured to be approximately 8” inches in height with variation in tread depths of approximately 0.375” of an inch or less. While taking measurements, it was noted that the carpeting surface has an inherent material softness quality that when the carpet is pressed upon, it will normally expand, deflect or depress by 0.125-0.25” of an inch. Therefore, there are trivial or insignificant deflections or depressions in the carpeting surface on 3 See page 19 of plaintiff’s deposition transcript, dated 7/24/2019. 7 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 the treads and risers due to the inherent material softness quality of carpeting material such as the subject. 17. I also measured the dimensions of the 3rd step from the top which contains a carpet rip on its tread surface. This 3rd tread depth was constructed by design to accommodate for the two winding steps above. The third step from the top has a tread depth of 3” inches on the left side and 18.25” inches on the right side with a riser height of approximately 8” inches (plus minus 1/4” of an inch). 18. At the time of my site visit, I observed a torn piece of carpeting on the stair tread of the 3rd step from the top, as shown in my attached site visit photographs. There were no carpeting tears on the stair tread of the 4th step from the top. The torn piece of carpeting on the 3rd step from the top measured approximately 4” in length by about 2” inches in width and formed a surface depression of approximately 0.125” (1/8”) of an inch deep. As previously indicated, it is not known whether the carpet tear observed at the time of my site visit and at the time of plaintiff’s inspection was the same size and shape that existed at the time of the accident and to what extent did the tear alter or changed in size and shape as result of the plaintiff’s incident itself. 19. The wood handrail on the left side of the staircase going up has a height of approximately 36” inches above stair nosing (plus minus 0.5“of an inch). The original design of the staircase railing is such that the handrail terminates at the 2nd floor level, which is the 5th step from the top landing and connects with a horizontal wood framing member that is attached to the top newel Post of the staircase. The design of the subject railing system is such that when a person reaches the fifth step from the top, they are able to reach or grab the top Newell 8 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 post which is about 12”inches away from the fourth step in several positions, as well as able to reach/grab and hold the wood balustrades of the railing above in several ways, enabling the user to support themselves in ascending the last two winding steps of the staircase. This handrail termination design in a winding staircase and its connection to newel posts at the center of the winding or spiraling top steps was a typical handrail design during the 19th century (1800s) at the time that the subject premises was built. 20. The plaintiff stated that just before the incident she was holding on to the railing until she got to the top of the stairs and there was no railing4. The wood handrail was found to be well-secured to its point of termination at the framing of the second-floor framing and frame connection to the top newel post and balustrades that is consistent with the architectural style and design used in the 1800s (see attached photos). The 3.25” inches-by-3.25” inches square wooden newel posts at the top of the staircase terminates approximately 8” inches away from the nosing of the 4th step from the top and approximately 3 inches in front of the nosing of the 3rd step from the top (plus minus ¼“ of an inch). 21. The incident occurred about 4:30 AM and artificial lighting of the stairway consists of a ceiling mounted, 2-bulb light fixture on each floor level. At the time of my site visit, there were two (2) high-efficiency light bulbs in the light fixture on the first floor and one (1) light bulb in the light fixture on the second-floor level. Since the plaintiff testified that at the time of the incident, there was no 4 See page 16 of plaintiff’s deposition transcript, dated 7/24/2019. 9 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 light at all on the second-floor level, any measurements at the time of my site visit (and at the time of plaintiff’s inspection) would not be the same as the lighting levels that existed at the time of the incident. Additionally, the light intensity also depends on the number of light bulbs in each fixture and the bulbs’ wattage present in the light fixture on each floor at the time of the incident. 22. During the daytime, natural lighting in the stairway is provided by a glass skylight on the third floor/roof level directly above the stairway, as well as a fixed glass pane at the first-floor entrance door. CITY INSPECTIONS RECORDS: 23. There were no HPD Violation Notices pertaining to the subject stairs and place of occurrence. Based on the HPD Certificate of Inspection Visits posted in the entrance foyer of the building, HPD inspections were conducted in the building in May 2013 and February 2018 (see attached site visit photo #2). Additionally, based on review of the online public property records by HPD (copies attached) there were four (4) violation notices pertaining to the building entrance doors and fire escape based on building inspections on 6/24/2012 and 3/6/2018. 24. Based on the attached copy of the NYC DOB Property Profile Overview, there were no recorded DOB and ECB Violation Notices issued against the building. 25. The NYC Housing Authority conducted an inspection of the plaintiff’s apartment on 3/1/2017. No violation notices pertaining to the place of occurrence were issued. Based on the attached copies of the NYC Housing Authority record entitled Certification of Completed Repairs, although several housing quality 10 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 standards violations were identified in plaintiff’s apartment, including loose or torn floor covering, no violation notices were issued at the place of occurrence. INFORMATION REVIEWED In the process of making my opinion, conclusions and findings herein, I performed the following actions and reviewed the following documents: a) Site visit on September 19, 2023, to observe, measure and photograph the subject staircase and place of occurrence at 227 Thomas S. Boyland Street, Brooklyn, NY. 11233 b) Review of plaintiff’s Summons & Verified Complaint dated 10/30/2017 (6 pages). c) Review of plaintiff's Bills of Particulars, dated 10/26/2018 (7 pages). d) Review of plaintiff's Further Bills of Particulars, dated 4/25/2019. e) Review of plaintiff's Response to Post Deposition Demands including 4 color photographs in Exhibit A dated 9/9/2019 (12 pages). f) Review of Plaintiff’s Deposition Transcripts dated 7/24/2019 (67 pages). g) Review of Response Pursuant to CPLR 3101(d) by Engineering Expert, Scott Silberman, P.E. dated 4/27/2023, without the expert report (32 pages). h) Review of the property's I-cards of the subject premises by the NYC Department of Housing Preservation & Development (HPD). i) Review applicable NYC Building Code and public online records of this building. j) Review NOAA (National Climatic Data Center) weather report dated 07/2017 for Laguardia Airport, New York, NY (WBAN) (copy attached). k) Review of public online records of the subject property, NYC online Tax map of the property (copy attached), as well as any available records of complaints and violation 11 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 notices (if any) by the NYC Department of Buildings (DOB), NYC Department of Housing Preservation & Development (HPD) and the Environmental Control Board (ECB). ANNECIA WI SUMMARY OF FINDINGS AND CONCLUSIONS: 26. Based on my site observations, photographs, review of case documents, review of the totality of the information available in this case, and as described in further details in the body of this report, I made the following findings and conclusions: 27. Overall, the subject wood framed stairway with the winding stair treads is part of the original construction of the building that was built in about 1800s and at the time of my site visit, the structural design and construction of the place of occurrence was found to be in conditions that are consistent with the standards of construction, design and style of such staircases built in the 1800s in a 3-family old law tenements of this size, type and age, subject to wear and tear. 28. The stairway structure was equipped with a well-secured handrail on the left side that terminates by design with a newel post approximately 3” inches in front of the nosing of the 3rd step and 8” inches behind the nosing of the 4th step from the top, consistent with the standards of construction, design and style of such staircases built in the 1800s in a 3-family residential building of this size, type and age. The design of this staircase is such that its winding stairs spiral around the top newel post which is at the center of the radius of the winding stairs and therefore allow a person using the stairs to grab the newel post or adjacent guardrail and balustrades for hand support in going up while turning the last set of winding stairs. The straight handrail in the lower portion of the staircase was designed for hand support while going up the straight set of steps in the staircase 12 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 while the top newel post, balustrades and guardrail of the 2nd floor hallway was designed to provide hand support in going up while turning the last set of winding stairs. 29. This staircase was built in the 19th century during the 1800s and therefore the plaintiff’s claims that the staircase violated an overwhelming number of design provisions of the 1916-2014 Building Codes are inapplicable to the design and construction of the subject winding stairs which were built prior to the effective date of these Building Codes. The purported violations of the rules for handrail construction pertain to handrails of straight staircases not to handrails of winding stairs such as the subject from the 1800s. Notably, section 151 of the 1916 Building Code and § C26-272.0 of the 1938 Building Code state that the 1916- 1938 codes are not applicable to tenement houses and multiple dwellings such as the subject. 30. Based on the facts discussed in detail below, there was no significant structural or design defect at the place of occurrence that is contrary to a specific applicable NYC Building Code provision or standard and that caused the subject slip or trip incident. The purported torn carpeting and insufficient lighting on the steps are considered to be non-structural conditions not structural or design defects of the stairs. Similarly, the purported inadequate handrail length is also not a structural defect that a owner who does not live in the building is responsible for. The purported violations of the structural design and construction provisions of the Building Code including handrail design are inapplicable to the subject premises and the incident, as discussed in detail below. 13 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 PLAINITT’S EXPERT REPORT: 31. The comments below are provided as my opinion in review of the underlined claims made by the plaintiff’s expert (S. Silberman PE) which were contained in plaintiff’s Response to the Defendants’ Demand for Expert Disclosure Pursuant to CPLR 3101(d). It should be noted that none of these alternative theories of the cause of the accident are the purported code violations asserted by plaintiff’s expert below are specified in the Verified Bill of Particulars: A. That the long-standing rip in the carpet created a dangerous condition and tripping hazard; Comment: This opinion that the rip in the carpet was a long-standing condition that created a dangerous hazardous conditions in the stairwell is speculative on multiple levels because: • There is no disclosure in the subject document of whether the carpet conditions and the rip in the carpet that existed at the time of the accident (8/17/2017) were substantially the same as the conditions existing at the time of plaintiff’s expert inspection (November 7, 2022), which is more than five (5) years after the accident. It’s just an assumption. • The plaintiff’s photographs of the place of occurrence are not dated and authenticated to be the same carpet conditions that existed on the day of the incident. It’s just an assumption. 14 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 • The plaintiff testified that she could barely see a shade of the rip in the carpet and therefore the length, width and shape of the tear in the carpet just before the accident was unknown. • The plaintiff stated that she lived in the building for about 10 years before the incident5 and has been using the same staircase without an incident. There were no other reported incidents, except for the subject single isolated event. The claim that the carpet rip created a long-standing dangerous and hazardous condition is speculative. • Even if we assume that the size and shape of the carpet rip was “a long- standing” conditions that existed at the time of the incident, the plaintiff testified the incident occurred on about the 4th step from the top, whereas the carpet rip depicted in plaintiff’s photographs occurred on the 3rd step from the top landing. Additionally, the plaintiff stated that it was dark in the stairs and she could barely see the shadow of the carpet rip. Therefore, the plaintiff’s claim that the carpet rip on the 3rd step caused her to trip in the dark is speculative and it is just as probable that the plaintiff tripped on the 4th step from the top which had no carpet rips claimed and no carpet rips shown in plaintiff’s photographs. B. That the lighting conditions were not sufficient and created a dangerous condition and tripping hazard; Comment: The opinion that the lighting conditions were not sufficient is also speculative because: 5 See page 8 of plaintiff’s deposition transcript, dated 7/24/2019. 15 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 • Based on the same facts described in paragraph a above. • Additionally, there are no disclosed lighting measurements (in foot- candles) to establish that the lighting levels were insufficient. • The number of bulbs and bulb wattage that existed at the time of the incident is unknown, making it impossible to verify the lighting intensity at the time of plaintiff’s inspection and at the time of my inspection, more than 5 years after the incident. • It is unknown whether the owner was aware of the burnt light bulb condition claimed and whether the owner had enough time to replace the bulb. Section 27-2053 of the Housing Maintenance Code provides an exception for this 3-family dwelling from the requirement of providing janitorial service and repairs on a continuous 24-hours x 7-days a week basis. Additionally, Sub-section 37(2) of the Multiple Dwelling Law (MDL) provide an exception to the owner’s responsibility to keep hallway lighting and states that: “…but if it becomes extinguished and remains so without the knowledge or consent of the owner he shall not be liable. The burden shall be upon the owner to show that the light became and remained extinguished without his knowledge or consent.” • i.e. The homeowner of a small building with less than nine (9) apartments is only expected to visit the premises and provide janitorial services on a periodic basis. The owner is not in exclusive control of the use of the subject stairs and therefore without any notice, the homeowner is not expected by any industry standards or Codes to be continuously on the 16 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 watch or be aware of the conditions of the staircase on 24 hours a day basis. C. That the handrail stopped prior to the step where she fell and therefore there was no graspable handrail at the location of the fall and such was negligence; Comment: The opinion that there was no graspable handrail “and such was negligence” is a legal type of an opinion which is unsupported from a design perspective by an engineering expert (including myself). As discussed in detail below, there are no violations of the applicable Building Code regarding the purported early handrail termination or handrail graspability: • The early termination of the subject handrail was no design defect and instead the handrail was designed and constructed to terminate at the second-floor framing members level that are connected to the newel post, which starts at the stair tread level of the 4th step from the top. This early handrail termination occurs by design just before reaching the winding stairs that wind or spiral with a radius around the newel post above, such that a person can climb up the winding stairs by holding onto the newel post or holding onto the balustrade and other framing members of the second floor, as shown in that attached photographs taken at the time of my site visit. • The opinion that early handrail termination at newels is dangerous or hazardous condition is not supported by the design code provisions. Even in more modern commercial buildings that were built after the date of the subject premises, early handrail termination at newel posts was permitted by Code. For example, Section 153(6) of the 1916 Building Code and Sub-section §C26-292.0 (L) of the 1938 Building Code permits upper handrail termination at newels. The more 17 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 modern 2008-2020 Building Codes provide for full-length handrails and handrail extensions at landings that are safer for handicap accessibility. This does not mean that early handrail termination with a newel post in a winding or spiraling staircase built in the 1800s is a dangerous or hazardous design for the building owner to maintain. • As discussed in detail below the Building Code permits owners of buildings such as the subject, which were built in the 1800s to be maintained in the same conditions and requirements that existed at the time the building was built, including sections 27-105 and 27-111 of the 1968 Building Code. Based on the attached copy of the NYC DOB Property Profile Overview, there are no prior Alterations job filings recorded for the building. D. That the riser heights were not uniform and therefore created a tripping hazard; Comment: The opinion that the non-uniformity of the stair riser heights created a tripping hazard is unconnected to the cause of the incident and the purported claim of varying riser heights is not a type of structural defects that an owner who does not live in the building is responsible for. There is no testimony that the plaintiff mis-stepped due to riser height variation. Instead, the plaintiff testified that the incident happened because her shoe got caught in the torn carpet and because she could not grab a handrail. There is no claim of a riser height uniformity violation of the applicable code when the staircase was built in the 1800s. E. That the tread widths were also not uniform and not sufficient width to hold a foot which is a dangerous and defective condition; Comment: Similarly, the opinion that the non-uniformity of the stair tread widths created a tripping hazard is unconnected to the cause of the incident and the purported claim of varying tread widths is not a type of 18 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 structural defects that an owner who does not live in the building is responsible for. There is no testimony that the plaintiff mis-stepped due to tread width variation. Instead, the plaintiff testified that the incident happened because her shoe got caught in the torn carpet in the dark and because she could not grab a handrail. There is no claim of a tread width uniformity violation of the applicable code when the staircase was built in the 1800s. F. That the stairs do not conform with the voluntary guidelines of the Standard Practice for Safe Walking Surfaces (ASTM F1637) published by the American Society of Testing Materials; While this standard may not be a statutory requirement in New York City, this industry standard reflects the good and accepted practice for providing a safe walking surface; Comment: To date, the opinion is unsupported because there are no sub-sections being specified in the expert disclosure document, no specific safety provisions raised and because the date that the purported voluntary standard of ASTM F1637 was published is unspecified. Obviously, if the purported voluntary standard was published after the year 2000, more than 100 years after the staircase was built, there is no way that the owner could “conform” and benefit from this construction standard. The claim is also unsupported because there is no evidence that the purported ASTM F 1637 guidelines were the “Published Generally Accepted Standards” that were accepted by the New York City’s construction industry and should have been adopted and conformed with by the homeowner (IRT Partnership). The opinion that the stairs should conform with ASTM F1637 standard suggests that the owner should have built and maintained the building by a higher standard of care that transcends the applicable Building Code. 19 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 10/30/2023 G. Ascending and/or descending a stairway is an even more complicated bio-mechanical activity and the deviations from the construction standards noted here are dangerous defects that increase the likelihood of a loss of balance and a fall; Comment: There is no testimony that the plaintiff lost her balance or any connection to the bio-mechanical activity of the plaintiff. Instead, the plaintiff testified that the incident happened because her shoe got caught in the torn carpet in the dark and because she could not grab a handrail. Additionally, since the non-compliance with bio-mechanical principals and musculoskeletal activity of a walking person are medical opinions beyond the expertise of the plaintiff’s expert as a civil engineer, as well as beyond my expertise, this opinion does not establish any failure of the defendants owner and management that caused defective bio-mechanical activity by the plaintiff and as result caused the accident with a reasonable of certainty of a bio-mechanical medical expert. H. That the stairs do not conform with the voluntary guidelines of the “Pedestrian Falling Accidents in Transit Terminals”, a 1985 Federal Transit Administration study performed by the Port Authority of New York and New Jersey and funded by the United States Dep