Opinion
No. 2022-01844 Index No. 509265/18
05-22-2024
Lyudmila Gutkina, etc., et al., appellants, v. Max Media & Art, LLC, et al., respondents.
Hecht, Kleeger & Damashek P.C. (Berson & Budashewitz, LLP, New York, NY [Jeffrey A. Berson], of counsel), for appellants. Smith Mazure, P.C., New York, NY (Joel M. Simon of counsel), for respondents.
Hecht, Kleeger & Damashek P.C. (Berson & Budashewitz, LLP, New York, NY [Jeffrey A. Berson], of counsel), for appellants.
Smith Mazure, P.C., New York, NY (Joel M. Simon of counsel), for respondents.
ANGELA G. IANNACCI, J.P., JOSEPH J. MALTESE, HELEN VOUTSINAS, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from an order the Supreme Court, Kings County (Debra Silber, J.), dated March 3, 2022. The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant Max Media & Art, LLC.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against the defendant Max Media & Art, LLC, is denied.
In August 2017, Arkadiy Gutkin (hereinafter the decedent) allegedly was injured while at his grandchild's wedding when a videographer employed by the defendant Max Media & Art, LLC (hereinafter Max Media & Art), backed into the decedent, knocking him to the ground. Thereafter, the decedent died of causes unrelated to the injuries he sustained in the incident. The plaintiffs, as co-administrators of the decedent's estate, commenced this action to recover damages for the decedent's personal injuries. The defendants moved for summary judgment dismissing the amended complaint, submitting, inter alia, the affidavit of an engineer who opined that a surveillance video of the accident and still photographs of the video conclusively established that the videographer did not back into, or otherwise come into contact with, the decedent. The plaintiffs opposed the defendants' motion but withdrew all causes of action against the defendants except for Max Media & Art. By order dated March 3, 2022, the Supreme Court, among other things, granted the defendants' motion for summary judgment dismissing the amended complaint, inter alia, finding that even if it was one of Max Media & Art's employees who bumped into the decedent, there was no actionable tort, since there was no claim that the contact "was anything but inadvertent." The plaintiffs appeal from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against Max Media & Art.
"'A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that [it] was not at fault in the happening of the subject accident'" (Fiorentino v Uncle Giuseppe's of Port Wash., Inc., 208 A.D.3d 757, 757-758, quoting Boulos v Lerner-Harrington, 124 A.D.3d 709, 709). "A motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Baab v HP, Inc., 211 A.D.3d 783, 783, quoting Abdenbi v Walgreen Co., 197 A.D.3d 1140, 1140 [internal quotation marks omitted]).
Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against Max Media & Art. In support of their motion, the defendants submitted, inter alia, the deposition transcript of the plaintiff Liliya Gurevich, who testified that she witnessed a videographer, who was holding a video camera on his shoulder, back into the decedent in the hallway near the elevators, causing the decedent to fall to the ground. Contrary to the defendants' contention, the surveillance video and still photographs submitted by the defendants failed to conclusively demonstrate that the videographer did not make contact with the decedent. This evidence, when viewed in the light most favorable to the plaintiffs as the nonmoving parties (see Burrus v Douglaston Realty Mgt. Corp., 175 A.D.3d 461, 461; Stukas v Streiter, 83 A.D.3d 18, 22), revealed triable issues of fact as to whether the videographer employed by Max Media & Art backed into the decedent, causing the decedent to fall.
Moreover, the Supreme Court erred in determining that even if it was one of Max Media & Art's employees who bumped into the decedent, there was no actionable tort. "The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury" (Roberson v Wyckoff Hgts. Med. Ctr., 123 A.D.3d 791, 792; see Wei-Hong Zhou v Doe, 136 A.D.3d 807, 808). "The general duty of care in a negligence action requires an individual to use that degree of care that a reasonably prudent person would have used under the same circumstances" (Shepard v Power, 219 A.D.3d 769, 771 [internal quotation marks omitted]; see Borrerro v Haks Group, Inc., 165 A.D.3d 1216, 1217). Here, a reasonable juror could conclude that it was entirely foreseeable that a videographer walking backwards in a crowded hallway while filming guests during a wedding might back into a guest absent due care or another individual to guide the videographer. Since there were factual issues as to whether Max Media & Art's videographer used the degree of care that a reasonably prudent person would have used under the same circumstances, summary judgment was inappropriate (see Shepard v Power, 219 A.D.3d at 771-772; Lee v Durow's Rest., Inc., 238 A.D.2d 384, 386).
Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against Max Media & Art, without regard to the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
IANNACCI, J.P., MALTESE, VOUTSINAS and VENTURA, JJ., concur.