Opinion
INDEX 161958/2018
01-06-2022
GINA-MARIE MARTINELL, Plaintiff, v. POLISH ARMY VETERANS ASSOCIATION OF AMERICA, DISTRICT NO. 2, INC., LIVE NATION WORLDWIDE, INC., LIVE NATION CONCERTS, INC. and IRVING PLAZA QUEENS, LLC, Defendants. MOTION SEQ. No(s). 1
Unpublished Opinion
MOTION DATE: 8/26/2021
PRESENT: HON. LEWIS J. LUBELL, J.S.C.
DECISION & ORDER ON MOTION
Lewis J. Lubell Judge
Defendants move (Motion #1) for summary judgment. Plaintiff cross-moves for summary judgment seeking a determination that defendants violated various sections of the New York City Building Code, Life Safety Code, and the New York City Administrative Code.
The following papers filed on NYSCEF were read on the motion: Doc. Nos
Notice of Motion, Affirmation, Memorandum of Law, Exhibits A-M . 42-59
Notice of Cross-Motion, Statement of Material Facts, Affirmation, Memorandum of Law, Exhibits A -N 63-80
Affirmation in Reply, Statement of Material Facts, Affidavit in Opp, Exhibits A - E, Affirmation 88 - 100
Defendants' Motion
By way of background, plaintiff commenced this action to recover damages for personal injuries allegedly sustained on October 28, 2018 at approximately 11 p.m. Plaintiff, a 31-year-old female, fell while descending a stairway at the Irving Plaza music venue located at 17 Irving Place, NY, NY. Plaintiff fell approximately 10 steps and suffered facial lacerations. The location is owned by Polish Army Veterans and operated by Live Nations. Defendants now move for summary judgment.
Initially, plaintiff argues that defendants' motion for summary judgment should be dismissed because defendants failed to comply with 22 NYCRR. Part 202.8-g which states that upon any motion for summary judgment. . . there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends that there is no genuine issue to be tried. Failure to file a Rule 19-a Statement of Material Facts is "a mere nonprejudicial irregularity that may be ignored" (see Abreu v Barkin and Assoc. Realty, Inc., 69 A.D.3d 420 [1st Dept 2010]). Although this Court does not condone defendants' failure to comply with Rule 19-a, should defendants otherwise be entitled to summary judgment, the failure to provide the Court with a Statement of Material Facts is insufficient to deny summary judgment. Moreover, defendants did submit a Statement of Material Facts with their Reply. The Court will determine defendants' motion on its merits.
On a motion for summary judgment, the Court is to determine whether triable issues of fact exist or whether judgment can be granted to a party on the proof submitted as a matter of law (see Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). The movant must set forth a prima facie showing of entitlement to judgment a as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986])
In support of the motion, defendants contend, among other things, that they are entitled to summary judgment because plaintiffs injuries were not proximately caused by any negligence of defendants. In support of this position, defendants proffer the deposition testimony of plaintiff wherein she testified that she had been drinking and admits to consuming at least 4 cups of wine containing eight ounces each immediately prior to the incident (Ex. G, pp 57 - 60). Plaintiff further states that was holding on to the handrail; did not look down as she was descending the stairs and "felt something wet" that she could not identify (Ex. G, p 75, 78-79). Defendants proffer the opinion of toxicologist Elizabeth Spratt who opines that plaintiff was "highly intoxicated" with a blood alcohol level of 0.358% at 45 minutes after the accident (Ex. M). Defendants' toxicologist opines that, given that level of blood alcohol, plaintiffs coordination would be adversely affected, specifically her balance and equilibrium, and tunnel vision would occur (id.). In addition, defendants contend that the evidence demonstrates that they had neither actual nor constructive notice of the subject condition. Defendants' on-site manager, Margaret Holmes, testified that she inspected the stairwell on the evening in question from 4 to 10 p.m. at least 10 times and 1/2 hour before the accident. She reported no spillage or debris (Ex. I, p 85). Defendants proffer that video surveillance of the area shows that the area was dry and free from debris and other guests had no problems navigating the stairway (Ex. J). In addition, defendants proffer the opinion of Timothy Ioganich, MS CHFP. Based upon his expert opinion, the cause of plaintiffs fall was a misstep as opposed to a worn condition of the nosing and/or the lateral displacement of the handrail, nor was there any liquid on the floor that facilitated plaintiffs fall (Ex. B).
Defendants submit surveillance videos of the area which they contend demonstrate that the entire stairwell where plaintiffs accident occurred was dry and free of any defects (Ex. J). Defendants further contend that the videos illustrate that guests were able to use the stairs in question without any difficulty.
Defendants have proffered sufficient evidence to demonstrate the absence of a dangerous condition at the site where plaintiff slipped and fell (see Lukyanovich v H.L. Gen. Contractors, Inc., 141 A.D.3d 693 [2d Dept 2016]). Moreover, defendants have proffered sufficient evidence to demonstrate, prima facie, that they neither created nor had notice, whether actual or constructive, of the purportedly dangerous condition (see Castore v Tutto Bene Rest. Inc., 77 A.D.3d 599 [1st Dept 2010]). As such, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 557 [1980]). The Court now turns to plaintiff to determine whether plaintiff has sufficiently rebutted defendants' proof.
"It is well settled that summary judgment is a drastic remedy that should be employed only when there is no doubt as to the absence of triable issues" (see Aguilar v. City of New York, 162 A.D.3d 601, 601 [1st Dept 2018]).
To rebut defendants' facts, plaintiff submits the deposition of her expert, Robert Fuchs, P.E., CFEI, CSP, who states that defendants violated certain building and safety codes with regard to the safety of the handrails and the overall failure to maintain the stairway in a safe condition, including worn treads on the steps. Fuchs inspected the premises, albeit 4 months after the incident, and found the subject handrail was loose and had excessively worn treads. In addition, Fuchs opines that the existence of a wet and slippery foreign substance were the proximate causes of plaintiff s injury (Ex. N). Fuchs measured the treads of the steps and found that the treads were excessively sloped downwards, specifically, the wear on the stair created a "downward slope that was greater than 2% in violation of Life Safety Code and New York City Building Code" (id.). Plaintiff further submits her own deposition wherein she states that the handrail was "wobbly." Plaintiff further argues that a review of the video of plaintiff demonstrates that plaintiff was walking steadily. In addition, plaintiff states defendants' opinion of plaintiff s steadiness as she descended the steps is not valid because defendants never viewed plaintiffs gait prior to the accident, and therefore had no reference point.
(Matter Not Available)
In determining whether the defendants have established a. prima facie case, the Court must view the evidence in the light most favorable to the non-moving party (see Penthouse Glob. Media, Inc. v Exec. Club LLC, 187 A.D.3d 410 [1st Dept 2020]).
Here, plaintiffs have succeeded in raising a material issue of fact by proffering evidence that a purportedly dangerous condition existed that the defendants had constructive and/or actual notice of the condition.
Plaintiff's Cross-Motion
As an initial matter, defendants raise an objection to the late filing of plaintiff s cross-motion. Pursuant to the Court's directive herein and the Part rules, dispositive motions in this matter were to be filed by February 16, 2020. Plaintiff filed her cross-motion on April 23, 2021, absent any explanation for the late filing. CPLR 2004 permits the court, in the exercise of its discretion, to grant an extension of time fixed by statute, rule or court order, upon a showing of good cause. "In the absence of a showing of good cause for the delay in filing a motion for summary judgment, 'the court has no discretion to entertain even a meritorious nonprejudicial motion for summary judgment"' (Greenpoint Props, Inc. v. Carter, 82 A.D.3d 1157, 1158 [2d Dept 2011], quoting John P. Krupski & Bros., Inc. v. Town Bd. of Southold, 54 A.D.3d 899, 901 [2d Dept 2008]; see Brill v City of New York, 2 NY3d 648, 652 [2004]). Here, plaintiff has not offered good cause for the late filing. Therefore, plaintiffs motion is denied as untimely.
Notwithstanding the above, plaintiffs motion for summary judgment is further denied on the merits. Plaintiff is seeking a summary determination that defendants violated numerous safety and administrative codes, more specifically, Sections 1009.5.1 and 1009.6.1 of the 2008 and 2014 New York City Building Code; Section 5.2.2.2 of the 1991 edition of the NFPA 101 Life Safety Code; Section 27-558 (b) (1) of the 1968 New York City Building Code; Sections 1607.7.1 and 1607.1.1 of the 2008 and 2014 New York City Building Code; Section 1.3.2 of the ASCE 7; and Section 28-031.1 of the New York City Administrative Code.
As stated above, plaintiffs expert testified as to alleged defects at the premises, as well as specific violations of building and administrative codes of the City of New York. To rebut this argument, defendants contend that plaintiffs expert's affidavit is speculative and conclusory and fails to set forth foundational facts. As stated above, plaintiff proffers evidence that the condition of the treads on the stairway, the wobbliness of the handrail, and the slant of the stair all created a dangerous condition. As such, plaintiff has established a prima facie case for summary judgment. Defendants rebut this evidence with their own expert who testified that "the presence thereof is not indicative of an inherently dangerous condition and can be concluded that it was not a causative factor in the plaintiffs fall" and "the condition of the handrail's lateral motion, if any, was inconsequential." (Ex. B). Further, defendants proffer the testimony of Ms. Holmes who testified that on the night of the incident, she did not receive any complaints regarding the condition of the stairs and no spillages on the steps were reported (Ex. I).
Defendants' argument that plaintiffs expert's opinion should not be considered because he visited the site several months after the incident is unavailing. The Court notes that defendants' expert did not visit the site at any time. In any event, the weight to be given the opinion of the experts is a matter for the jury to determine.
Defendants have succeeded in raising a material issue of fact by proffering evidence to rebut plaintiffs contentions that defendants violated several New York City codes requiring property to be maintained in a safe condition.
Based upon the foregoing, it is hereby
ORDERED that defendants' motion (Mot. #1) is DENIED; and it is further
ORDERED that plaintiffs cross-motion is DENIED.
The foregoing constitutes the Decision and Order of the Court.