Opinion
12620 Index No. 159843/16 Case No. 2020-02518
12-15-2020
Vincent PIZZOLO, Plaintiff–Respondent, v. THYSSENKRUPP ELEVATOR CORPORATION, Defendant–Appellant.
Babchik & Young, LLP, White Plains (Matthew C. Mann of counsel), for appellant. Ross, Legan, Rosenberg, Zelen & Flaks, LLP, New York (Richard H. Rosenberg of counsel), for respondent.
Babchik & Young, LLP, White Plains (Matthew C. Mann of counsel), for appellant.
Ross, Legan, Rosenberg, Zelen & Flaks, LLP, New York (Richard H. Rosenberg of counsel), for respondent.
Renwick, J.P., Gische, Gonza´lez, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (W. Franc Perry, J.), entered on or about May 13, 2020, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant met its prima facie burden of establishing that the wooden pallet stacked with boxes containing elevator controllers, which plaintiff tripped over, was open and obvious and not inherently dangerous. Plaintiff's photographs show that the pallet was readily visible, and the photographs and the parties' testimony together show that the pallet was situated flush against a diagonal support beam and was not obstructing any passageway.
In opposition, plaintiff raised issues of fact as to whether, making reasonable use of his senses, he could have seen the pallet before he stepped on it (see Mauriello v. Port Auth. of N.Y. & N.J., 8 A.D.3d 200, 200, 779 N.Y.S.2d 199 [1st Dept. 2004] ). Plaintiff's testimony and photographic evidence of the angle at which he approached the space containing the support beam suggest that he was unable to see the pallet underneath the boxes on the other side of the beam as he sought to step over the beam to reach a nearby staircase, or a sharp edge jutting out from the boxes on top plaintiff denied seeing the pallet, which was wider than the stack of boxes, until he was stepping down over the beam. He stated that he traversed a path he typically walked while on the floor.
Moreover, factual issues exist as to whether the pallet's positioning presented an inherently dangerous condition, which plaintiff had to navigate suddenly and unexpectedly; plaintiff's focus on traversing the beam, the sudden snagging of his shirt on a sharp object projecting from one of the boxes, and the absence of any expectation of encountering objects immediately on the other side of the beam may have affected his attention as to what was on the other side of the beam. There is no evidence that directly contradicts plaintiff's version of the accident, including what he saw as he approached the beam, and issues of credibility are to be resolved by the factfinder, not on a summary judgment motion (see Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 324, 819 N.Y.S.2d 250 [1st Dept. 2006], affd 8 N.Y.3d 931, 834 N.Y.S.2d 503, 866 N.E.2d 448 [2007] ).
To the extent the evidence suggests that the hazard plaintiff stumbled over was open and obvious and that plaintiff unnecessarily took a partially obstructed route, the record presents an issue of fact as to comparative negligence for resolution by the factfinder (see Derix v. Port Auth. of N.Y. & N.J., 162 A.D.3d 522, 79 N.Y.S.3d 146 [1st Dept. 2018] ; see generally Saretsky v. 85 Kenmare Realty Corp., 85 A.D.3d 89, 924 N.Y.S.2d 32 [1st Dept. 2011] ).