Opinion
No. 3916/07.
2010-03-25
Debora SOKOLOVSKAYA, Hon. Robert J. Miller, Plaintiff, v. Natalia ZEMNOVITSKH d/b/a Paradise II Resort, and Paradise II Resorts, Inc., Defendants.
Elliott Katsnelson, Esq, for plaintiff. Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP., by Thomas G. Darmondy, Esq., of counsel, for defendants.
Elliott Katsnelson, Esq, for plaintiff. Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP., by Thomas G. Darmondy, Esq., of counsel, for defendants.
ROBERT J. MILLER, J.
This action arises from an injury allegedly sustained by the plaintiff Debora Sokolovskaya, (Sokolovskaya) after falling on the terrace of defendants' Natalia Zemnovitskh d/b/a Paradise II Resort and Paradise II Resorts, Inc., (collectively Paradise II Resorts) allegedly due to a dangerous and defective condition of the floorboards. Defendants move for summary judgment claiming the alleged defect was trivial and that defendant's had no notice of any defect.
Whether a dangerous or defective condition exists is generally a question for the jury. (Zalkin v. City of New York, 36 AD3d 801 [2nd Dept.2007] ). However, a property owner is not liable for damages for trivial defects that do not constitute a trap or nuisance. (Hargrove v. Baltic Estates, 278 A.D.2d 278 [2nd Dept.2000] ). Determining whether a dangerous condition exists is a fact-specific inquiry that requires the court to examine the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” (Zalkin v. City of New York, 36 AD3d 801 [2nd Dept.2007] ).
Plaintiff concedes that the lighting was sufficient. (Deposition of Sokolovskaya at p. 27) and there is no allegation that the floor was wet. Therefore, the only question is whether the difference in height between the floorboards where plaintiff tripped constitutes a dangerous condition. Paradise II Resorts submits that the height difference between the floorboards causing plaintiff's fall was one-fourth of an inch. This is based on the testimony of Dimitry Ptitsyn, (Ptitsyn) superintendent of Paradise II Resorts, who is in charge of all maintenance at the resort and repaired the floorboards after plaintiff's fall. However, Ptitsyn estimated the height difference at one-fourth of an inch after reviewing photos of the defect taken by plaintiff's sister. (Deposition of Ptitsyn p. 89). The photos were taken from floor-level with no markings as to the depth of the defect. Neither the plaintiff nor the defendants actually measured the defect at any point.
Plaintiff asserts, based on the same photos, that the height difference was at least one inch and plaintiff's expert testified that this constitutes a dangerous condition. However, plaintiff's expert never actually visited the site. Without actual inspection of the defect, plaintiff's expert's opinion cannot be taken as conclusive evidence that the defect was one inch. (Kasner v. Pathmark Stores, 18 AD3d 440 [2nd Dept.2005] ).
However, regardless of the unknown height of the defect, the plaintiff fails to demonstrate that the defendants created the condition which caused the accident, or that the defendants had actual or constructive notice of the condition. (Bykofsky v. Waldbaum's Supermarkets, Inc., 210 A.D.2d 280 [2nd Dept.1994] ).
To prove that Paradise II Resorts did not have notice of the defect, and didn't create the defect, and therefore prevail on the summary judgment motion, defendants must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor. (GTF Mtkg, Inc. v. Colonioal Aluminum Sales, Inc., 66 N.Y.2d 965 [1985] ). Plaintiff testified that she did not see the defect before her fall despite being on the terrace eight or nine times before the incident (Sokolovaskaya deposition at p. 19), and was not aware of any other patron lodging a complaint about the terrace (Sokolavaskaya deposition at p. 22). The owner of the resort testified that she never saw the floor of the terrace in that condition (Deposition of Natalia Zemnovitsch at p. 77) and that no one had fallen on the terrace before (Zemnovitsch deposition at p. 89), which the superintendent affirmed (Ptitsyn deposition at p. 71). The superintendent also testified that he replaces the screws in the floorboards before the beginning of every season (Ptitsyn deposition at p. 76), and checks for defects on a daily basis (Ptitsyn deposition at p. 44–45):
Q. When you said previously that you also inspect the areas how is it that you inspect areas?
A. Well, as the person responsible for the maintenance and order every morning I go to places of gathering where people spend most time like restaurant, porch, the public area and just look if anything has to be done there.
Q. Describe that procedure for me. Is that daily, something else, weekly or something else?
A. Basically every morning as soon as I come on the property.
The testimony of the Paradise II Resorts' owner and superintendent satisfy their burden that the resort was not on notice of the defect and did not create the defect. The burden now shifts to the parties opposing the motion to come forward and raise triable issues. (Zuckerman v. City of New York, 404 N.E.2d 718 [2nd Dep't 1980] ).
Plaintiff's expert asserts that the defective condition took months or years to develop (Affidavit of William Marletta at p. 12) and that it was initially caused by defendants' use of improper materials or anchoring methods. Plaintiff therefore argues that Paradise II Resorts either caused the defect or had constructive notice of the defect. However, as Marletta never actually visited Paradise II Resorts, this is an unsubstantiated assertion. Bald conclusory assertions are insufficient to defeat a motion for summary judgment. (Rosenberg v. Rockville Centre Club, Inc. 166 A.D.2d 570 [2nd Dept.1990] ). Plaintiff offers no evidence to establish actual notice or creation of the defect. As such, the defendants have met their burden and are entitled to summary judgment. The Clerk of the Court is directed to enter judgment dismissing the complaint with prejudice.
The foregoing constitutes the decision and Order of the Court.