Christoforou v. Lown , 120 A.D.2d 387 ( 1986 )

— Judgment, Supreme Court, New York County (Robert E. White, J.), entered June 18, 1985, in favor of plaintiff Eugenia Christoforou (Mrs. Christoforou) in the final amount of $141,400 and plaintiff Militides Christoforou (Mr. Christoforou) in the final amount of $7,000 which awards constituted reductions from a gross verdict in favor of Mrs. Christoforou in the amount of $202,-000 and of Mr. Christoforou in the amount of $10,000, the jury-having found Mrs. Christoforou to be 30% negligent, is reversed, on the law and on the facts, the judgment is vacated, and the complaint is dismissed, without costs.

Mrs. Eugenia Christoforou, on July 13, 1981, at approximately noontime, arrived at 255 West 84th Street, New York County, which apartment building was owned by defendants. Thereafter, Mrs. Christoforou, who was 80 years old at the. time, asked the doorman if there was a public telephone she could use. Thereupon, the doorman directed Mrs. Christoforou to enter the building. Once inside, she and the doorman walked through an approximately 100-foot-long lobby, turned, walked another 20 feet to the doorway of a hallway, which was where the telephone was located. Even though she admitted that there was a dim light on the high ceiling of the hallway, and that she could see the telephone on the wall because it was lighted, Mrs. Christoforou allegedly complained to the doorman, who was walking behind her, "It’s dark, too dark, I can’t see it”. In response, the doorman allegedly stated, in substance, "Go ahead. Go ahead. There is the telephone.” Thereafter, Mrs. Christoforou, while looking straight ahead at the telephone, continued walking, and midway down the corridor, stumbled on a two-step staircase. As she was falling, she allegedly reached for a handrail, but there was none. This fall resulted in her fracturing her left heel.

Subsequently, Mrs. Christoforou and her husband commenced an action against the defendants to recover for her injuries and his loss of services. The basis of the plaintiffs’ action was that allegedly the dim lighting in the hallway caused Mrs. Christoforou’s accident. After issue was joined, a jury trial was held.

At trial, Mrs. Christoforou testified to the facts, as set forth, supra. In addition, she testified, in pertinent part: (1) that, before the accident, she had been in the subject building in order to inspect an apartment on the third floor, which had been advertised by the tenant for sale; (2) that, she took the passenger elevator to the apartment that she inspected; (3) that, some years prior to the accident, she had undergone surgery for the removal of cataracts; (4) that, also at sometime in the past, she had glaucoma, but, at the time of the accident, she was not putting drops in her eyes; (5) that, she always wears glasses; (6) that, she does not have any trouble seeing; and, (7) that, she did not see the steps, since they were allegedly the same "off-white” color as the rest of the hallway floor.

Reis Dalmas (Mr. Dalmas), who was the superintendent of the subject building, testified for the defendants. In substance, Mr. Dalmas testified: (1) that the lobby area is 100 feet by 30 feet; (2) that, in order to reach the telephone on entering the vestibule of the building, a person must walk straight ahead, then turn left and walk 20 feet, and then walk another 100 feet to the telephone; (3) that, approximately halfway along the 100 feet toward the telephone, there are two off-white marble steps; (4) that, the color of the flooring in this area is off-white like the marble steps; (5) that within 10 feet of the steps is a ceiling fixture containing a 40-watt fluorescent bulb; (6) that, along the corridor that Mrs. Christoforou used to reach the telephone is a passenger elevator, as well as mailboxes and apartment doors; (7) that, the area between the door of the vestibule and the main lobby to the telephone was lighted by three overhead fixtures, which contained a total of approximately 125 watts; and, (8) that, on the day of the incident, all the lights were working.

Although Mrs. Christoforou contended that the stairs were a "trap”, in view of the fact that they were the same color as the floor in the hallway, the trial court refused to permit Mr. Dalmas to testify: (1) that, during the 27 years he had been superintendent, he had never received a complaint about the lighting conditions, which had remained the same throughout that period; and, (2) whether he had knowledge of any prior accidents in that hallway.

Even though the trial court conceded in the record of trial that the plaintiffs presented no expert testimony with respect to either the lighting conditions in the hallway or whether the defendants had complied with the lighting requirements for public hallways, which are contained in Administrative Code of the City of New York § D26-19.03, the trial court, over defense objection, charged this Administrative Code section to the jury.

The jury returned a verdict in favor of the plaintiffs, which was reduced by the 30% mentioned supra.

We agree with the dissent that the trial court committed prejudicial errors in limiting Mr. Dalmas’ testimony and in charging the Administrative Code section on lighting requirements.

First, as to Mr. Dalmas’ testimony. In view of the fact that the plaintiff contended that the two-step marble staircase was a "trap”, because it was the same off-white color as the hallway floor, the trial court erred in refusing to allow Mr. Dalmas to testify: (1) that he had never received any complaints about the lighting conditions in this hallway; and, (2) whether he had knowledge of any prior accidents in that hallway. Testimony about lighting complaints and prior accidents from this witness, who had 27 consecutive years of experience at the subject building, would have been particularly relevant on the issue of defendants’ alleged negligence. His testimony that he never received any complaints about the quality of the lighting in that hallway would have strengthened the defendants’ position that they had received no notice of a dangerous condition (see, Bolm v Triumph Corp., 71 AD2d 429, 438 [1979], lv dismissed 50 NY2d 928 [1980]). Moreover, Mr. Dalmas’ negative answer to the question of whether he had knowledge of any prior accidents would have strengthened defendants’ contention that Mrs. Christoforou fell since she did not look where she was walking, rather than because of the lighting. This court stated in Stein v Trans World Airlines (25 AD2d 732 [1st Dept 1966]) that: "Such evidence [of whether there had been prior accidents] is relevant and often persuasive on the question of whether a given condition should be classified as dangerous”.

Second, as to the charge. Since the plaintiffs, as mentioned supra, presented no evidence that defendants had violated the Administrative Code, "[i]t [was] prejudicial error to charge [the] statute where there [was] no evidence to support a finding that the statute was violated” (Wilmot v City of New York, 73 AD2d 201, 204 [1st Dept 1980]).

We find these two errors prejudicial and, therefore, a remand for a new trial would normally be justified. However, additionally, upon review of this record it is crystal clear that the plaintiffs have not carried their burden of proving a prima facie case, from which a jury could rationally infer that a lack of care on the part of defendants caused Mrs. Christoforou to fall. The Court of Appeals of this State held in Quinlan v Cecchini (41 NY2d 686, 689 [1977]), "Of course, it is still the * * * court which, in the first instance must determine whether the facts will support a negligence finding as a matter of law”.

It is undisputed that a 40-watt fluorescent light was located in a ceiling fixture within approximately 10 feet of the steps on which Mrs. Christoforou tripped. Furthermore, Mrs. Christoforou herself testified: (1) that she had been in this building before the accident, and that she had used the passenger elevator on this earlier occasion. As mentioned supra, Mr. Dalmas had testified that the passenger elevator was located along the corridor to the telephone. These facts indicate to us that Mrs. Christoforou had a prior familiarity with this general area; and, (2) that, as she approached the telephone, her eyes were concentrated mostly on the telephone. Moreover, the plaintiffs offered no expert testimony to rebut the defendants’ evidence that the hallway was adequately lighted.

It is basic that one alleging inadequate lighting must show a breach of a duty of reasonable care and that such breach was the proximate cause of the injuries (Quinlan v Cecchini, supra). Other than plaintiff’s testimony that the lighting was dim,^* no objective proof was submitted from which the jury could conclude there was an absence of due care. Plaintiff failed to establish that a lack of lighting was the proximate cause of her accident.

Examination of the dissent indicates no relevant legal authority that supports the conclusion that, based upon the facts of the instant case, an issue of fact had been created by Mrs. Christoforou’s testimony that should have been submitted to the jury. As mentioned supra, in pertinent part, Mrs. Christoforou testified that as she walked down that hallway her eyes were concentrated on the telephone at the end of the hallway, and not on where she wás walking. Furthermore, in our view, the dissent engages in pure speculation, which is unsupported by the record, when it contends that a shadow may have been cast and that she was being guided down that hallway by the doorman, to such an extent that she had surrendered control of her movements to him (see, for example, Mrs. Christoforou’s testimony at pages 32-34 of the transcript of trial, which appears in the record on appeal, concerning her relationship to the doorman while she was walking down that hallway). We find that such speculation is not a substitute for the facts.

Moreover, we reject as unsupported by the record, the contention of the dissent that there are issues of fact for the jury to resolve relative to the defendants’ negligence.

Accordingly, we reverse and dismiss the complaint. Concur —Murphy, P. J., Sullivan and Ross, JJ.

* The record indicates that the plaintiff is 80 years old and suffering from glaucoma.