The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)
A company that owned a service ramp at the One New York Plaza building’s loading dock shouldn’t be liable for the injury of a security officer who failed to raise a triable issue of fact regarding negligence in the ramp’s construction, a state appeals court has ruled.
A unanimous Appellate Division, First Department, panel said Tuesday summary judgment was warranted because Mark Schmidt, assigned to work security at Manhattan’s New York Plaza when the accident occurred, failed to raise a triable issue regarding violation of any industrywide standard at the time of the ramp’s construction.
The panel pointed out, in Schmidt v. One New York Plaza, 151406/13, that Schmidt’s expert “failed to ‘offer concrete proof of the existence of the relied upon standard as of the relevant time, such as a published industry or professional standard or [related] evidence,’” quoting Hotaling v. City of New York.
The decision reversed Manhattan Supreme Court Justice Debra James’ January denial of summary judgment to defendants.
Schmidt was inspecting trucks entering the loading dock, the panel wrote, when a person with the pallet passed him. He turned and took a step to the ramp’s outer edge, rotated his ankle, and fell backward.
In moving for summary judgment, defendants submitted an architect’s report concluding the ramp’s design and construction didn’t violate New York City Building Code or any industrywide standard.
Schmidt averred that his expert would testify that ramp defects violated proper and accepted building and engineering standards for ramps in equivalent buildings, and violated the New York City Building Code and industry standards.
But Justices Rolando Acosta, Rosalyn Richter, Troy Webber and Marcy Kahn wrote that, ultimately, Schmidt failed to point to any industrywide standards that may be applicable.
Christopher Skoczen, a McManus Ateshoglou Adams Aiello & Apostolakos associate representing defendants, said on Wednesday that the “court came to the right decision.” The justices “looked at the evidence closely, and determined there was really no basis to support that there was defect,” he said.
Jeffrey Berson of Berson & Budashewitz, counsel to Schmidt, couldn’t be reached for comment.