Barna v. Belmont Mgmt. Co.

211 A.D.3d 1129

180 N.Y.S.3d 305

Paul BARNA, as Administrator of the Estate of Jeannine Pelletier, Deceased, Respondent,

v.BELMONT MANAGEMENT CO., INC., et al., Appellants.

532675

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 19, 2022

Decided and Entered: December 1, 2022

Rupp Baase Pfalzgraf Cunningham LLC, Saratoga Springs (Phillip A. Oswald of counsel), for appellants.

E. Stewart Jones Hacker Murphy, LLP, Troy (David I. Iversen of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Ceresia, J. Appeal from an order of the Supreme Court (Ann C. Crowell, J.), entered December 30, 2020 in Saratoga County, which, among other things, denied defendants’ motion for summary judgment dismissing the complaint.

Jeannine Pelletier (hereinafter plaintiff)¹ was injured when she fell down a darkened stairwell in her senior apartment complex during a power outage and broke both of her arms. Thereafter, plaintiff commenced the instant action for negligence against defendants, who own and operate the apartment complex. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Plaintiff opposed and cross-moved to amend the complaint to add a claim for punitive damages. Supreme Court denied defendants’ motion and plaintiff's cross motion, and defendants appeal.

Defendants contend that they did not owe plaintiff a duty of care. We disagree. It is true that defendants owed no common law duty to provide lighting in the stairwell during a power outage (see Palionis v. Jakobson Props., LLC, 157 A.D.3d 592, 592, 66 N.Y.S.3d 881 [1st Dept. 2018] ; Viera v. Riverbay Corp., 44 A.D.3d 577, 579, 845 N.Y.S.2d 12 [1st Dept. 2007] ; Solan v. Great Neck Union Free School Dist., 43 A.D.3d 1035, 1036, 842 N.Y.S.2d 52 [2d Dept. 2007] ). However, "it is well settled that once a person voluntarily undertakes acts for which he or she has no legal obligation, that person must act with reasonable care or be subject to liability for negligent performance of the assumed acts" ( Hilts v. Board of Educ. of Gloversville Enlarged School Dist., 50 A.D.3d 1419, 1420, 857 N.Y.S.2d 292 [3d Dept. 2008] ; see Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 522, 429 N.Y.S.2d 606, 407 N.E.2d 451 [1980] ). Here, the uncontroverted evidence demonstrated that defendants installed battery-powered auxiliary lights in the stairwell, designed to illuminate the stairs during the first 90 minutes of a power outage. In the event of an outage exceeding 90 minutes, defendants also placed battery-operated touch lights on the walls of the stairwell and hung a flashlight from the railing. Defendants took these actions in order to assist people traversing the stairs during an outage and advised the building's tenants about this emergency lighting. Thus, under these circumstances, we conclude that defendants assumed a duty of reasonable care as a matter of law by installing the supplemental lighting system in the stairwell (see Seeger v. Marketplace, 101 A.D.3d 1691, 1692, 956 N.Y.S.2d 770 [4th Dept. 2012] ).

Nevertheless, there are issues of fact as to whether defendants exercised this duty reasonably. "Under the assumed duty theory, ‘the question is whether defendants’ conduct placed plaintiff in a more vulnerable position than [she] would have been in had defendants done nothing’ " ( Giglio v. Saratoga Care, Inc., 117 A.D.3d 1143, 1144, 985 N.Y.S.2d 314 [3d Dept. 2014] [brackets omitted], quoting Heard v. City of New York, 82 N.Y.2d 66, 72, 603 N.Y.S.2d 414, 623 N.E.2d 541 [1993] ; see Kranenberg v. TKRS Pub, Inc., 99 A.D.3d 767, 768–769, 952 N.Y.S.2d 215 [2d Dept. 2012] ; see...