New York City, like many large metropolitan areas, has maintained a Building Code governing how buildings must be constructed and laid out for well over a century. As with all municipal codes, the Building Code has gone through several iterations over the years, becoming more detailed and expansive as our understanding of what constitutes a safe and habitable building has changed.

One difficulty for premises liability practitioners is figuring out which specific Building Code applies to the site of an alleged accident. It is quite common for three buildings standing next to one another to have three different versions of the Building Code apply to each of them, depending on when the building was first built and whether, during subsequent construction or renovation, the Department of Buildings required the building be brought “up to” a newer Code. The First Department’s recent decision in Verderese v 3225 Realty Corp. reminds us that correctly determining the applicable Building Code provision often determines whether a defendant property owner will be liable to an injured plaintiff.

In Verderese, plaintiff fell on a set of interior stairs in a residential building. She alleged there were no handrails present, and that this violated the applicable 1916 Building Code. The trial court awarded summary judgment to defendant, and the First Department affirmed.

Looking to the 1916 Building Code, the First Department determined that while handrails were required for “interior stairs,” the Code did not define what they were. Looking to the more recent 1968 Building Code for guidance, the First Department held that while “interior stairs” allow egress to the exterior of the building, “access stairs” provide travel between floors in the building. Relying on two photographs of the stairs in question produced by defendant, the First Department ruled that the stairs were “access stairs”—and therefore did not require handrails under the 1916 Building Code—because while the stairs were within the building lobby, they did not provide access to the outside.

Based on its analysis, the First Department also rejected plaintiff’s expert report. The court reasoned that because there was no violation of the 1916 Building Code, and because the 2008 Building Code did not apply (the two Codes the expert used to establish his opinion), the expert could not rely on either to say that the lack of handrails violated accepted engineering practices.

Verderese serves as a reminder to all premises liability practitioners to examine plaintiff’s bill of particulars and expert reports for alleged Building Code violations, and then determine whether the alleged violations applied to the building in question. If plaintiff’s claim for liability is predicated on an inapplicable Code, summary judgment remains viable.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at mailto: