This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Matthew Gaier, for appellant. H. Leonard Toker, for respondent.
READ, J.:
The events precipitating this lawsuit took place on St.
Patrick's Day, 1999. After lunching and watching the St.
Patrick's Day Parade, decedent Douglas Buchholz and three co-
workers returned to their employer's offices on the thirteenth
floor of the full-block, 50-story General Motors tower at 767
Fifth Avenue in Manhattan. Decedent, who weighed over 200
pounds, and one of his three co-workers eventually got caught up
in "play fighting." Shortly after 7:00 p.m., decedent was
"pushed" and "fell through" the center panel of a three-panel bay
window. He plunged to his death, landing on the roof of the
building's three-story high showrooom.[1]The bay window's center panel measured 37 inches wide
by roughly 88 inches high, was fitted with quarter-inch-thick
non-tempered bronze plate glass, and was flanked by two 12-inch -
wide by 88-inch-high side panels. The base of the bay window
rested atop a 24-inch deep convector cover, which was
approximately 16 inches tall.[2]The General Motors tower was erected in 1968 for its
namesake automotive company; defendant Trump 767 Fifth Avenue,
LLC acquired the building in 1998. The building's general
manager since 1979 testified that he had no knowledge of "any
problem with the [tower's] window glass," or of "any incidents .
. . where glass popped out of windows or . . . slipped out of
windows." Prior to March 1999 there had been "occasional damage
to glass" causing it to crack, but this was a "very, very low
level of concern." The building manager was not aware of
"anybody breaking a glass from falling up against it" prior to
March 1999, or of any other incident in his "many years in the
building where glass . . . shattered" upon human impact. When the building manager arrived at the scene of
decedent's fatal accident at about 8:30 P.M., he saw shards of
glass in the center window panel's frame; the side panels were
undamaged. A sheetrock wall adjacent to the window was marred by
"indentations" or "creases . . . where it was caved in."
Because the frame of the center window panel was intact and
undamaged, it was not removed or repaired when the glass was
later replaced. Plaintiff Deborah Buchholz, decedent's wife, commenced
this action against defendant both individually and as executrix
of decedent's estate. Plaintiff alleges that defendant was
negligent in its ownership and control of the premises, leading
to decedent's death. More specifically, plaintiff's bills of
particulars claim that defendant neglected to furnish
shatterproof glass windows and a safety rail across the window's
face, and failed to comply with applicable regulations, including
New York City Administrative Code § 27-651. Following joinder of issue and discovery, defendant
moved for summary judgment to dismiss the complaint, arguing that
there was no evidence that defendant was negligent and that
section 27-651 did not apply to the window. In opposition,
plaintiff submitted the affidavit of her expert, a registered
architect and licensed professional engineer, who inspected the
scene of the accident on April 22, 2002. Plaintiff's expert averred that the window's "very low
sill" made it "highly susceptible to accidental human contact."
He opined that the window was a "similar installation[]" under
section 27-651 of the New York City Administrative Code "because
the glass panel was highly susceptible to human impact loads as
are the other installations in [this] code provision," which
requires outfitting those glass panels subject to it with a push
bar or grille. Accordingly,
"good and accepted engineering and
building safety practices dictated
that a protective barrier bar be
installed between 34 to 38 inches
above the floor capable of
withstanding a horizontal load of
50 pounds per linear foot without
contracting (sic) the glass and
that the barrier be a minimum of 1-
½ inches thick."
Plaintiff's expert opined that the failure to install this
protective barrier violated section 27-651; departed from good
and accepted engineering and building safety practices at the
time the tower was built; was readily discoverable when defendant
purchased the building in 1997 and inspected the windows in 1998;
and should have been remedied before decedent's accident. Plaintiff's expert continued that the tower's "non-
tempered glass was [also] hazardous because [this glass] is not
resistant to horizontal impact loads and is highly susceptible to
shattering and breaking into sharp dangerous shards," and that
defendant should have recognized this danger. Further, "good
engineering and building safety practices dictated that all the
windows with non-tempered glass should have been safeguarded with
a protective bar." Plaintiff's expert concluded that decedent's
death was "directly due to non-compliance with N.Y.C Building
Code Section 27-651 and accepted engineering and building code
practice." Specifically, "[i]f the glass was properly tempered
and/or a protective bar introduced across the window, . . . this
accident which resulted in decedent's death would have been
avoided."
Supreme Court denied defendant's motion for summary
judgment, stating that "[a]lthough . . . the window could not
have been confused as a door or some other means of egress," she
was
"unable to determine, as a matter
of law, whether the placement of
the window sill created a situation
where a person could easily stumble
and fall through the glass pane,
necessitating the protections
required by section 27-651 of the
Administrative Code."
Moreover, plaintiff's expert had "raised an issue of fact as to
whether the construction/installation of the window was a serious
deviation and departure from the standard and proper practice for
office buildings in the City of New York."
The Appellate Division reversed, granted defendant's
motion and dismissed the complaint. The court concluded that as
a matter of law section 27-651 does not apply to "exterior
windows, whatever their location or dimensions" (4 AD3d 178 [1st
Dept 2004]). Further, the Court found that plaintiff's expert's
testimony was conclusory and unsupported, and "since the question
of the applicability of [section 27-651] is a purely legal one,
the motion court should not have allowed the expert to usurp its
function as the sole determiner of law" (4 AD3d at 179 [internal
citations omitted]). We granted plaintiff leave to appeal, and
now affirm. New York City Administrative Code § 27-643 ("Scope")
sets forth the scope of Article 12 ("Glass Panels") of the
Building Code as follows:
"The provisions of sections 27-644
through 27-648 of this article [12]
shall apply to the use of glass in
the exterior wall of a building and
shall be limited to exterior
application wherein the glass would
not be subjected to any loads
normal to the face of glass other
than those due to wind. For
applications involving human
impact, the provisions of section
27-651 of this article shall apply.
For other cases, the strength and
mode of installation of glass shall
conform to accepted industry
standards."
Thus, exterior windows normally subject only to wind loads are
covered by sections 27-644 through 27-648, while glass
applications involving human impact are governed by section 27-
651. Section 27-651 ("Panels subject to human impact
loads"), in turn, provides that
"[g]lass in prime and storm doors,
interior doors, fixed glass panels
that may be mistaken for means of
egress or ingress, shower doors and
tub enclosures, or in similar
installations wherein one or more
of the following criteria apply,
shall meet the requirements set
forth in table 10-9, or by
comparative tests shall be proven
to produce equivalent performance:
"(a)openings are located in regularly
occupied spaces. "(b)lowest point of panel is less
than eighteen inches above
finished floor. "(c)minimum dimension of panel is
larger than eighteen inches."
The portion of Table 10-9 applicable to a glass panel of the type
and dimension of the bay window's center panel (regular plate,
over 6 square feet) specifies glass "not less than 3/16 inch
thick" (as was the case here) and "protected by a pushbar or
protective grille firmly attached on each exposed side, if not
divided by a muntin" (as was not the case here). Thus, this
appeal essentially reduces to whether the center window panel is
a "similar installation[]" within the meaning of section 27-651
and thus subject to the specifications in Table 10-9. Plaintiff contends that the bay window's center panel
is a "similar installation[]" because its size, configuration and
location in regularly occupied space rendered it highly
susceptible to accidental human contact. By its plain, very
specific language, however, section 27-651 addresses only doors
and door-like panels ("Glass in prime and storm doors, interior
doors, fixed glass panels that may be mistaken for means of
egress or ingress, shower doors and tub enclosures" [emphasis
added]), which are pushed or pulled or are otherwise subject to
human contact when someone tries to enter or exit through them.
We therefore conclude that the term "similar installations" in
section 27-651 encompasses only doors and door-like panels -- not
a fixed exterior window panel. Based on her expert's opinion that the window was
unsafe, plaintiff also argues that the Appellate Division erred
in rejecting her common law negligence claim. Plaintiff's expert
opined that good and accepted engineering and building safety
practices dictated installation of tempered glass in the window
or, alternatively, a 1½-inch thick protective barrier bar placed
between 34 to 38 inches above the floor and capable of
withstanding a horizontal load of 50 pounds per linear foot
without contacting the glass. Further, plaintiff's expert opined
that decedent's accidental death would have been averted "[i]f
the glass was properly tempered and/or a protective bar
introduced across the window."
This conclusory testimony was insufficient to raise a
question of fact as to whether defendant breached its duty to
"maintain[] [its] property in a reasonably safe condition in view
of all the circumstances, including the likelihood of injury to
others, the seriousness of the injury, and the burden of avoiding
the risk" ( Basso v Miller, , 40 NY2d 233, 241 [1976] [citation and
internal quotation marks omitted]). Plaintiff's expert cited no
authority, treatise, standard, building code, article or other
corroborating evidence to support his assertion that good and
accepted engineering and building safety practices called for the
installation of tempered glass in the General Motors building
when it was erected in 1968, or for defendant to retrofit this
50-story tower's non-tempered glass windows with bars after
acquiring the building in 1998. Plaintiff's expert cited only section 27-651 of the New
York City Administrative Code -- which we have held to be
inapplicable as a matter of law -- to support his opinion that
protective barrier bars should have been installed across the
face of the building's non-tempered glass windows either in 1968
or after 1998. He provided no authority for his very particular
specifications ( i.e., thickness, height above the floor,
horizontal load capacity) for such bars, or any basis for his
view that tempered glass and/or a bar would have prevented
decedent's accident, especially in light of the absence of any
information about the height at which or the force with which
decedent struck the bay window's center panel. "Where the
expert's ultimate assertions are speculative or unsupported by
any evidentiary foundation . . . the opinion should be given no
probative force and is insufficient to withstand summary
judgment" ( Diaz v New York Downtown Hosp., , 99 NY2d 542, 544
[2002]). Here, the police reports indicate that decedent was
pushed against and through the window as a consequence of rough
"play fighting," and the Medical Examiner's report classifies the
death as a homicide. Moreover, in the tower's roughly 31 years
of occupancy prior to March 17, 1999, there were no remotely
similar occurrences such as glass popping or slipping out of a
window, or a window panel breaking when someone came into contact
with it. In light of these circumstances, decedent's accident
was not foreseeable as a matter of law ( see Tagle v Jakob, , 97 NY2d 165, 168 [2001]; Palsgraf v Long Island R.R. Co., 248 NY
339, 344 [1928] ["[t]he risk reasonably to be perceived defines
the duty to be obeyed"]). Concomitantly, the third-party act of
pushing decedent into the window was sufficiently extraordinary
to supersede any alleged negligence on defendant's part ( see Kush
v City of Buffalo, , 59 NY2d 26, 33 [1983]; see also Pena v Schur,
245 AD2d 206, 207 [1st Dept 1997], lv denied , 91 NY2d 811; Hyman v
Queens County Bancorp, Inc., 3 NY3d 743 [2004] [holding that lack
of second safety rail in bank was only speculatively the cause of
plaintiff's injury]). Accordingly, the order of the Appellate Division should
be affirmed, with costs.
Decedent's death was ruled a homicide by the Medical
Examiner; no criminal charges were ever filed. There is no
eyewitness account of the events immediately preceding decedent's
death; the three co-workers refused to testify in this action.
What we know derives principally from two Unusual Incident
Reports prepared by the detective from the New York City Police
Department who interviewed witnesses and investigated, as well as
a Complaint Report form. These documents, from which the
quotations in the text are taken, were completed in the early
morning hours of March 18, 1999. The Complaint Report indicates
the presence of "bottles [and] glasses" at the scene of
decedent's fatal accident.
This latter measurement was furnished by plaintiff's
expert. According to defendant, the convector cover upon which
the bay window's base rested was roughly 20 inches tall.