Opinion
No. 2021-02823 Index No. 603153/18
08-17-2022
Anita Mancini, respondent, v. Carmela Nicoletta, appellant.
The Di Pippo Law Group, LLC, Garden City, NY (Eric D. Mercurio of counsel), for appellant. Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, NY (Justin S. Curtis and Beth S. Gereg of counsel), for respondent.
The Di Pippo Law Group, LLC, Garden City, NY (Eric D. Mercurio of counsel), for appellant.
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury, NY (Justin S. Curtis and Beth S. Gereg of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered April 14, 2021. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
On December 21, 2017, at approximately 12:45 p.m., the plaintiff fell down a staircase inside a building owned by the defendant. As the plaintiff descended the stairs, there was a handrail on the right side but not on the left side of the staircase. The plaintiff commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff did not know what had caused her to fall and that the staircase, which only had one handrail, was not in violation of any applicable statute or code. The Supreme Court denied the motion, and the defendant appeals.
In a premises liability case, a defendant property owner moving for summary judgment can establish its prima facie entitlement to judgment as a matter of law on the issue of negligent maintenance by showing that the plaintiff cannot identify the cause of his or her accident (see Gaither-Angus v Adelphi Univ., 180 A.D.3d 875; Gani v Avenue R Sephardic Congregation, 159 A.D.3d 873, 874). "However, even if a plaintiff's fall is precipitated by a misstep, where the plaintiff testifies that he or she reached out to try to stop his or her fall, the absence of a handrail, if required by law, may raise an issue of fact as to whether the absence of the handrail was a proximate cause of his or her injury" (Jackson v Bethel A.M.E. Church, 192 A.D.3d 868, 869-870; see Palmer v Prima Props., Inc., 101 A.D.3d 1094, 1094-1095; Russo v Frankels Garden City Realty Co., 93 A.D.3d 708, 710; Viscusi v Fenner, 10 A.D.3d 361, 362).
Here, the defendant established, prima facie, that the plaintiff did not know what had caused her to fall (see Jackson v Bethel A.M.E. Church, 192 A.D.3d at 870; Gaither-Angus v Adelphi Univ., 180 A.D.3d at 876). The defendant also established, prima facie, that the building was not subject to the particular code provisions relied upon by the plaintiff (see Lieb v Guzman, 134 A.D.3d 913; Navarre v Ketcham, 122 A.D.3d 811; DeCourcey v Briarcliff Cong. Church, 104 A.D.3d 799, 801). In opposition, the plaintiff failed to raise a triable issue of fact as to whether there was an applicable statutory or code provision that required a second handrail on the staircase. The plaintiff also failed to raise a triable issue of fact as to whether the defendant breached her common-law duty to maintain the staircase in a reasonably safe condition by failing to install a second handrail (see DeCourcey v Briarcliff Cong. Church, 104 A.D.3d at 801; cf. DeCarlo v Vacchio, 147 A.D.3d 724; Swerdlow v WSK Props., Corp., 5 A.D.3d 587, 588; see generally Salazar v Kellari Parea, LLC, 189 A.D.3d 1490, 1491; Fishelson v Kramer Props., LLC, 133 A.D.3d 706, 708).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
BARROS, J.P., CHAMBERS, MILLER and CHRISTOPHER, JJ., concur.