Opinion
12399 Index No. 153417/18 Case No. 2020-01719
11-17-2020
Rosanna Mercado DE PEPIN, et al., Plaintiffs–Respondents, v. BERIK MANAGEMENT, INC, et al., Defendants–Appellants.
Steinberg & Cavaliere, LLP, White Plains (Ronald W. Weiner of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.
Steinberg & Cavaliere, LLP, White Plains (Ronald W. Weiner of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondents.
Manzanet–Daniels, J.P., Singh, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered February 24, 2020, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established prima facie entitlement to summary judgment through the testimony of the apartment building's superintendent that he examined the stairs on which plaintiff fell on the date of her accident and found no defects. He further said that no one had fallen down those stairs until plaintiff's accident (see Manderson v. Phipps Houses Servs., Inc. , 173 A.D.3d 459, 103 N.Y.S.3d 40 [1st Dept. 2019] ; see also Roman v. Met–Paca II Assoc., L.P. , 85 A.D.3d 509, 925 N.Y.S.2d 447 [1st Dept. 2011] ). Defendants also submitted plaintiff's deposition testimony, in which she admitted that she could not identify what caused her to fall due to her short-term memory loss (see Manderson , 173 A.D.3d at 459, 103 N.Y.S.3d 40 ; see also Walsh v. Murphy , 267 A.D.2d 172, 700 N.Y.S.2d 32 [1st Dept. 1999] ), and a medical opinion stating that plaintiff had a history of cardiovascular issues and an MRI from shortly before the accident showing an intracerebral cavernoma.
In opposition, plaintiff raised a triable issue of fact through the affidavit of her engineering expert, who, after viewing a videotape of the accident and inspecting the site, concluded that the step on which plaintiff fell was dangerously worn and sloped (see Haibi v. 790 Riverside Dr. Owners, Inc. , 156 A.D.3d 144, 147, 64 N.Y.S.3d 22 [1st Dept. 2017] ). Although plaintiff could not recall the details of her fall due to the memory loss she suffered as a result of it, the dangerous condition of the step and her fall thereon "establish the natural and reasonable inference of ... proximate cause" ( id. at 149, 64 N.Y.S.3d 22 ; see Broderick v. Edgewater Park Owners Coop., Inc. , 180 A.D.3d 527, 115 N.Y.S.3d 889 [1st Dept. 2020] ).