Opinion
511796/14
08-11-2017
Sunitha Reddy, Plaintiff, v. 488 3rd St. Owners Corp., Defendant.
Attorney for Plaintiff Silberstein, Awad & Miklos, P.C. 600 Old Country Road, Suite 412 Garden City, NY 11530 (516) 832-7777 Attorney for Defendant Law Offices of Fern Flomenhaft PLLC Christopher G. Keane, Esq. 26 Broadway, 26th Floor New York, NY 10004 (212) 796-7600
Attorney for Plaintiff Silberstein, Awad & Miklos, P.C. 600 Old Country Road, Suite 412 Garden City, NY 11530 (516) 832-7777 Attorney for Defendant Law Offices of Fern Flomenhaft PLLC Christopher G. Keane, Esq. 26 Broadway, 26th Floor New York, NY 10004 (212) 796-7600 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the defendant 488 3rd St. Owners Corp. filed on April 3, 2017, under motion sequence number three for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint. Notice of motion Affirmation in support Exhibits A—O Affirmation in opposition Exhibits A—C Reply affirmation Exhibits A—B
BACKGROUND
On December 12, 2014, plaintiff Sunitha Reddy commenced the instant action for damages for personal injuries by filing a summons and verified complaint. By verified answer dated January 7, 2015, the defendant joined issue. On January 31, 2017, plaintiff filed a note of issue.
Plaintiff's verified complaint, bill of particulars, supplemental bill of particulars and deposition transcript allege the following salient facts. On Monday June 3, 2013, plaintiff fell while attempting to descend a winding stairwell (hereinafter the subject stairwell) located between the third and second floor of the interior staircase of 488 Brooklyn, New York 11215 (hereinafter the subject premise) due to a defective and dangerous condition. The subject premise is a cooperative building. The fall occurred when plaintiff attempted to step down on to the third step and lost her footing due in part to the lack of sufficient space on the winding carpeted tread. Plaintiff also has claimed that the defective and dangerous condition included, among other things, the fact that the subject stairwell contained non-uniform risers and inadequate winders. Plaintiff claims that the defendant owns, manages and maintains the subject premises and was negligent in allowing the stairwell to contain non-uniform risers and inadequate winders.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 569 [1991]).
"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).
"A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses" (Chojnacki v Old Westbury Gardens, Inc, —- NYS3d ——2017 WL 30458412017 NY Slip Op. 05706 [2nd Dept 2017]). "Only then does the burden shift to the plaintiff to establish an issue of fact" (Id.).
The defendants submitted fifteen exhibits in support of its motion. Included therein were the commencement papers, the defendant's answer, plaintiff's verified bill and supplemental bill of particulars, plaintiff's deposition transcripts, photographs of the subject stairwell, plaintiff's discovery responses, unsworn medical records, a deposition transcript and an affidavit of Anita Aboulafia (hereinafter Aboulafia), the secretary of the co-op board , additional photographs, an affidavit of Thomas Breslin (hereinafter Breslin), the defendant's investigator, an affidavit of Mark Marpet, P.E. (hereinafter Marpet), defendant's mechanical engineer, copies of an excerpt from a newspaper article published in the 1900s and copies of a poem by a poet who once resided in the subject premise in the early 1900s.
Exhibit F consists of three colored photographs of part of a stairwell. The photographs were shown to the plaintiff at her deposition and she identified them as images of the subject stairwell that did not include the step in which the accident occurred. Exhibit J is one grainy black and white photograph shown to Anita Aboulafia at her deposition which she identified as the subject stairwell including the step in which plaintiff fell.
The defendant's motion is premised on the contention that the subject stairwell was neither dangerous nor defective. In support of that contention the defendant heavily relies on the affidavit of Marpet, a mechanical engineer. Marpet's affidavit was sworn to in the State of New Jersey and did not contain a certificate of conformity. Marpet has averred that he has been a licensed mechanical engineer since 1973 and has had numerous publications in research journals in the area of walkway safety that are set forth in an annexed curriculum vitae. The curriculum vitae was not annexed to his affidavit. He averred that he examined the subject stairwell on October 23, 2014 and offered an opinion of the condition of the lighting, the height and width of the treads and riser, and the condition of the carpeting of the subject stairwell. His observations were made sixteen months after the plaintiff's accident. His affidavit fails to include proof that any of his observations existed at the time of the accident.
Marpet's affidavit included a diagram purportedly setting forth his findings of the sixteen steps of the subject stairwell without explaining how the diagram was to be read. It is therefore unclear what his findings were regarding the claim of lack of uniformity in the height of the risers and the width of the treads. For example, although he stated that the subject stairwell contained sixteen steps, the right side of the diagram only contained seven lines labeled UL and T1 through T6.
Mapat has opined that the subject premise has been in existence since 1880 based in part on his review of an atlas of Brooklyn. He did not annex any part of the particular atlas he relied upon. He has concluded that the New York City Building Code and New York Multiple Dwelling Law are not applicable to the subject premise or the subject stairwell. He states that the subject premise was issued a certificate of occupancy. He also states in conclusory fashion that the issuance of a certificate of occupancy attests to the fact that no change in the subject stairwell was required. Finally, he opines that the subject stairwell was neither hazardous nor dangerous.
The affidavit and deposition transcript of Aboulafia establishes that she resides in an apartment on the second floor of the subject premise and that she responded to the sound of a thud and came upon the plaintiff after the plaintiff fell. She did not actually observe the fall. The affidavit of Breslin was offered to show the efforts he made in searching public records to determine when the subject premise was constructed.
Contrary to the defendant's contention, the evidence submitted in support of its motion, set forth above, failed to establish, prima facie, that the condition of the subject stairwell was open and obvious and not inherently dangerous as a matter of law (see Casiano v St. Mary's Church, 135 AD3d 685 [2nd Dept 2016]). Nor did it establish that the condition of the subject stairwell, of having uneven risers and non uniform treads, was a trivial defect and therefore not actionable.
A defendant seeking dismissal, on a motion for summary judgment, of a complaint on the basis that the alleged premises defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses; only then does the burden shift to the plaintiff to establish an issue of fact (Parente v City of New York, 144 AD3d 1117, 1118 [2nd Dept 2016]). Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury (Kavanagh v Archdiocese of City of New York, —- NYS3d ——2017 WL 3045803, 2017 NY Slip Op. 05711 [2nd Dept 2017] citing Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Id. at 977). There is no "minimal dimension test or per se rule" that the condition must be of a certain height or depth to be actionable (Kavanagh v Archdiocese of City of New York, —- NYS3d ——2017 WL 3045803, 2017 NY Slip Op. 05711 [2nd Dept 2017]). In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, "including the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury" (Id.). "Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable" (Kavanagh v Archdiocese of City of New York, —- NYS3d ——2017 WL 3045803, 2017 NY Slip Op. 05711 [2nd Dept 2017] citing Schenpanski v Promise Deli, Inc., 88 AD3d 982, 984 [2nd Dept 2011]).
The defendant annexed as exhibit F three photographs of the subject stairwell which did not include the step that allegedly was the cause of plaintiff's fall. The defendant also included as exhibit J a single black and white photograph that purportedly showed the actual step which plaintiff fell from. It was too dark and too grainy to show the actual condition of the step. No other images of the subject stairwell were offered.
The defendants have relied heavily on the contention that at the time of plaintiff's accident the subject stairwell was built before the enactment of the New York City Building Code and, therefore, the building code either did not apply to the subject stairwell or did not require that the stairwell be changed to make it compliant with the code. Assuming for the sake of argument that this contention is accurate, it would not eliminate all material issues of fact as to whether the subject stairwell was dangerous or defective at the time of plaintiff's accident.
The affidavit of the defendant's engineer who based his inspection of the subject stairway sixteen months after the plaintiff's accident does not meet the defendant's burden. There is no basis to conclude that the condition the engineer observed had not changed since the plaintiff's accident occurred.
It also does not meet the burden because the engineer did not explain the diagram he provided or his findings as to the height and width differential in the treads and risers. It also does not meet the burden because his conclusion that the condition of the stairwell was not dangerous or trivial was conclusory. It is noted that the defendant did not seek summary judgment on the claim that it lacked notice of the alleged dangerous condition. In summary, since the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law, the Court need not consider the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
CONCLUSION
The motion of defendant 488 3rd St. Owners Corp. for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint is denied.
The foregoing constitutes the decision and order of this Court. Dated: August 11, 2017 Hon. Francois A. Rivera J.S.C.