Opinion
10-26-2016
Lisa ALEXIS, appellant, v. Motel OASIS, et al., respondents.
Arze & Mollica, LLP, Brooklyn, NY (Raymond J. Mollica of counsel), for appellant. Gannon, Rosenfarb & Drossman, New York, NY (Lisa L. Gokhulsingh of counsel), for respondents.
Arze & Mollica, LLP, Brooklyn, NY (Raymond J. Mollica of counsel), for appellant.
Gannon, Rosenfarb & Drossman, New York, NY (Lisa L. Gokhulsingh of counsel), for respondents.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated April 16, 2015, as granted that branch of the motion of the defendants Motel Oasis and Flatlands Hospitality, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On May 31, 2011, the plaintiff, while a guest at the Motel Oasis, allegedly was injured as she attempted to step out of an elevated shower stall. The plaintiff commenced this action, against, among others, Motel Oasis and its owner, Flatlands Hospitality, LLC (hereinafter together the defendants). Following discovery, the defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, contending that they maintained their premises in a reasonably safe condition. The Supreme Court granted that branch of the motion, and the plaintiff appeals.
3 “A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767 N.Y.S.2d 40 [internal quotation marks omitted]; see Witkowski v. Island Trees Pub. Lib., 125 A.D.3d 768, 769, 4 N.Y.S.3d 65 ). In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed, and that the defendant landowner affirmatively created the condition or had actual or constructive notice of its existence (see Zamor v. Dirtbusters Laundromat, Inc., 138 A.D.3d 1114, 31 N.Y.S.3d 130 ; Witkowski v. Island Trees Pub. Lib., 125 A.D.3d at 769, 4 N.Y.S.3d 65 ; Ingram v. Costco Wholesale Corp., 117 A.D.3d 685, 985 N.Y.S.2d 272 ; Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d 560, 792 N.Y.S.2d 123 ). The absence of a violation of a specific code or ordinance is not dispositive of a plaintiff's allegations based on common-law negligence principles (see Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293–294, 598 N.Y.S.2d 160, 614 N.E.2d 723 ; Zebzda v. Hudson St., LLC, 72 A.D.3d 679, 680–681, 897 N.Y.S.2d 727 ). Here, the defendants established their entitlement to judgment as a matter of law by demonstrating, prima facie, that the elevated shower stall was not a defective condition (see Zamor v. Dirtbusters Laundromat, Inc., 138 A.D.3d at 1114–1115, 31 N.Y.S.3d 130 ; Witkowski v. Island Trees Pub. Lib., 125 A.D.3d at 769–770, 4 N.Y.S.3d 65 ; Ingram v. Costco Wholesale Corp., 117 A.D.3d at 685, 985 N.Y.S.2d 272 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.