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FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT.

The Second Department determined the plaintiff did not demonstrate the property owner’s failure to modify a five-inch high threshold in a brightly lit area created a dangerous condition. The building was constructed in 1924 and there was no showing the owner was required to bring the building up to code or to comply with the Americans with Disabilities Act. The court noted that the standards promulgated by the American Society for Testing and Materials were not  mandatory and could not be the basis for liability:

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… [The owner and property manager] demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the threshold to the entrance of the premises was approximately five inches high and located in a brightly lit area, and therefore open and obvious and not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defect was actionable … . In his affidavit, the plaintiff’s expert architect did not dispute the fact that the premises were constructed in 1924, prior to the enactment of the building code, and cited no requirement that the premises be renovated to meet the building code enacted subsequent to its construction. Further, the Americans With Disabilities Act … standards, relied upon by the plaintiff’s expert, generally do not require renovation of buildings constructed prior to 1991 … , and the expert cited no evidence that any exceptions to that rule were applicable here. The expert’s reliance on standards promulgated by the American Society for Testing and Materials did not raise a triable issue of fact as to the liability of [the owner and property manager], since those standards are nonmandatory guidelines, a violation of which would not support a finding of liability … . Futter v Hewlett Sta. Yogurt, Inc., 2017 NY Slip Op 02970, 2nd Dept 4-19-17

NEGLIGENCE (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/PREMISES LIABILITY (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/SLIP AND FALL (FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/AMERICANS WITH DISABILITIES ACT (PREMISES LIABILITY, FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)/OPEN AND OBVIOUS (PREMISES LIABILITY, FIVE INCH HIGH THRESHOLD WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS, NO EVIDENCE BUILDING BUILT IN 1924 MUST BE BROUGHT UP TO CODE OR COMPLY WITH THE AMERICANS WITH DISABILITIES ACT)

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