Alvia v. Mutual

24 Citing cases

  1. Bagley v. 1122 E. 180th St. Corp.

    No. 2022-01730 (N.Y. App. Div. Mar. 15, 2022)

    1122 East failed to raise a triable issue as to whether the work Con Ed performed to the roadway adjacent to the accident location created a duty to plaintiff that was breached or whether Con Ed caused or contributed to the alleged condition on the curb and sidewalk (see Blech v West Park Presbyt. Church, 97 A.D.3d 443, 444 [1st Dept 2012]). Contrary to 1122 East's contention, the record searcher's affidavit that the work Con Ed performed before the accident was in the roadway, and that there were "no records for work that was near the accident location," does not conflict with her deposition testimony that Con Ed's work permit allowed it to open the roadway or the sidewalk to install conduit (see Alvia v Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312 [1st Dept 2008]).

  2. Bagley v. 1122 E. 180th St. Corp

    203 A.D.3d 502 (N.Y. App. Div. 2022)   Cited 7 times

    1122 East failed to raise a triable issue as to whether the work Con Ed performed to the roadway adjacent to the accident location created a duty to plaintiff that was breached or whether Con Ed caused or contributed to the alleged condition on the curb and sidewalk (see Blech v. West Park Presbyt. Church, 97 A.D.3d 443, 444, 948 N.Y.S.2d 273 [1st Dept. 2012] ). Contrary to 1122 East's contention, the record searcher's affidavit that the work Con Ed performed before the accident was in the roadway, and that there were "no records for work that was near the accident location," does not conflict with her deposition testimony that Con Ed's work permit allowed it to open the roadway or the sidewalk to install conduit (seeAlvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312, 868 N.Y.S.2d 25 [1st Dept. 2008] ). The court correctly denied AP Plumbing's motion for summary judgment.

  3. Gil v. Margis Realty LLC

    183 A.D.3d 547 (N.Y. App. Div. 2020)   Cited 5 times

    Plaintiff Angeni Gil was injured when, while descending the right side of the exterior staircase of the subject premises, she slipped and when she tried to grab onto a handrail, there was no right-sided handrail. A triable issue of fact thus exists as to whether the absence of a required handrail on that side of the staircase was a proximate cause of the accident (seeSanchez v. Irun , 83 A.D.3d 611, 922 N.Y.S.2d 324 [1st Dept. 2011] ; Alvia v. Mutual Redevelopment Houses, Inc. , 56 A.D.3d 311, 868 N.Y.S.2d 25 [1st Dept. 2008] ). Defendants' argument that the missing handrail on the right side of the staircase did not proximately cause plaintiff's fall since she chose not to use the available left-side handrail, is directed to the issue of comparative negligence (seePenge v. Board of Educ. of City of N.Y. , 10 A.D.3d 251, 252, 781 N.Y.S.2d 68 [1st Dept. 2004] ).

  4. Adriana G. v. Kipp Wash. Heights Middle Sch.

    165 A.D.3d 469 (N.Y. App. Div. 2018)   Cited 10 times

    One N.Y. Plaza Co. LLC, 153 A.D.3d 427, 428–429, 60 N.Y.S.3d 37 [1st Dept. 2017] ; Griffith v. ETH NEP, L.P., 140 A.D.3d 451, 33 N.Y.S.3d 238 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209191 [2016] ). However, plaintiffs raised a triable issue of fact because they submitted an expert affidavit from a certified playground safety inspector stating that the fence violated NYCSA's standards because her inspection revealed that it had sharp edges, and infant plaintiff's affidavit averring that the sharp edges on the top of the fence were present when the accident happened (seeBerr v. Grant, 149 A.D.3d 536, 537, 52 N.Y.S.3d 352 [1st Dept. 2017] ; Alvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312, 868 N.Y.S.2d 25 [1st Dept. 2008] ).

  5. Cartagena v. Access Staffing, Llc.

    151 A.D.3d 580 (N.Y. App. Div. 2017)   Cited 6 times

    Plaintiff's affidavit presents a triable issue of fact as to whether a special employee relationship existed between the school and Fofana. Plaintiff set forth that no one from the school supervised Fofana's work or directed his daily schedule, and that the school did not provide him with equipment or a uniform (see Holmes v. Business Relocation Servs., Inc., 117 A.D.3d 468, 469, 984 N.Y.S.2d 868 [1st Dept. 2014], affd. 25 N.Y.3d 955, 8 N.Y.S.3d 253, 30 N.E.3d 896 [2015] ; compare Berhe v. Trustees of Columbia Univ. in the City of N.Y., 146 A.D.3d 697, 45 N.Y.S.3d 465 [1st Dept.2017] ).The motion court properly considered plaintiff's affidavit, as it did not contradict her deposition testimony (see e.g. Alvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 868 N.Y.S.2d 25 [1st Dept.2008] ). Furthermore, plaintiff's deposition testimony and affidavit provide a nonspeculative basis for her account of the accident and sufficiently demonstrates a nexus between the hazardous condition and the circumstances of her fall, because she testified that immediately after she fell she noticed that the floor was wet and that there was a janitor's cart with wet floor signs attached to it near the accident location (see Garcia v. 1265 Morrison LLC, 122 A.D.3d 512, 513, 997 N.Y.S.2d 62 [1st Dept.2014] ).We have considered defendant's remaining contentions and find them unavailing.

  6. Lee v. Alma Realty Corp.

    146 A.D.3d 471 (N.Y. App. Div. 2017)

    The stairs which led to the door providing egress from the building to the outside were interior stairs requiring handrails (Administrative Code §§ 27–232, 27–375; Cusumano v. City of New York, 15 N.Y.3d 319, 323, 910 N.Y.S.2d 410, 937 N.E.2d 74 [2010] ). Plaintiff raised an issue of fact as to whether the absence of handrails was a proximate cause of his fall by submitting his expert's affidavit stating that the absence of handrails was a dangerous departure from accepted standards and the applicable building code (see Gold v. 35 E. Assoc. LLC, 136 A.D.3d 453, 453, 24 N.Y.S.3d 622 [1st Dept.2016] ; Alvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312, 868 N.Y.S.2d 25 [1st Dept.2008] ).

  7. Gold v. 35 East Associates LLC

    136 A.D.3d 453 (N.Y. App. Div. 2016)   Cited 12 times

    As to the claim regarding the absence of a handrail, whether or not defendant made a prima facie showing, plaintiff raised a triable issue of fact by submitting his expert's nonconclusory affidavit stating that the absence of a handrail on the right side of the stairway was a dangerous departure from good and accepted safety practices in the industry (see Greene v. Simmons, 13 A.D.3d 266, 266, 786 N.Y.S.2d 517 1st Dept.2004 ). Further, the expert's opinion, along with deposition testimony that plaintiff had tried to reach out to grab something when he fell, raised a triable issue of fact as to whether the absence of a handrail was a proximate cause of plaintiff's injuries (see Alvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312, 868 N.Y.S.2d 25 1st Dept.2008; Lievano v. Browning School, 265 A.D.2d 233, 233, 696 N.Y.S.2d 452 1st Dept.1999 ).

  8. Barley v. Robert J. Wilkins, Inc.

    122 A.D.3d 1116 (N.Y. App. Div. 2014)   Cited 26 times
    In Barley v. Robert J. Wilkins, 122 AD3d 1116, the plaintiff sued for injuries from a fall on a single step riser that did not have a handrail.

    Although Bova further opined that the riser did not violate the 2002 or 1964 state building codes because the building was constructed prior to their enactment, whether the building code applies to the riser is not dispositive of plaintiff's claim, which is premised on common-law negligence principles (see Cook v. Indian Brook Vil., Inc., 100 A.D.3d 1247, 1248, 954 N.Y.S.2d 662 [2012] ; Wilson v. Proctors Theater & Arts Ctr. & Theater of Schenectady, 223 A.D.2d 826, 829, 636 N.Y.S.2d 456 [1996] ). Based on his inspection and measurements, Bova asserted that neither the height of the step nor the lack of a handrail made the riser dangerous; however, he failed to definitively state the height of the riser and establish that it comported with generally accepted standards at the time the building was constructed or thereafter (see Carter v. State of New York, 119 A.D.3d at 1200–1201, 990 N.Y.S.2d 333 ; see also Alvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312, 868 N.Y.S.2d 25 [2008] ).Additionally, plaintiff testified that it was difficult for her and her coworkers to traverse the step because it was “very high.” While defendant places great emphasis on plaintiff's admission that she stepped over the riser many times, as it was the only way to access the women's restroom, and that she was aware of the drop at the time that she fell, “[t]he germane issue in this case is not a failure to warn, but whether these premises were reasonably safe” (Sisson v. Metromedia Steakhouses, Inc., 17 A.D.3d 855, 856, 794 N.Y.S.2d 138 [2005] ).

  9. Mike v. 91 Payson Owners Corp.

    114 A.D.3d 420 (N.Y. App. Div. 2014)   Cited 40 times

    o the weather conditions that existed on the day of and days prior to the accident raised triable issues as to whether the ice that allegedly caused the accident was formed before the storm, as opposed to being created by the precipitation from the storm in progress ( see Bogdanova v. Falcon Meat Mkt., 107 A.D.3d 638, 639, 969 N.Y.S.2d 16 [1st Dept.2013]; Massey v. Newburgh W. Realty, Inc., 84 A.D.3d 564, 567, 923 N.Y.S.2d 81 [1st Dept.2011] ). Defendants also failed to indicate when the sidewalk had last been inspected or cleaned of snow and ice ( see Bojovic v. Lydig Bejing Kitchen, Inc., 91 A.D.3d 517, 936 N.Y.S.2d 205 [1st Dept.2012] ), and their showing of their general cleaning procedures is insufficient to satisfy their burden of establishing that they lacked notice of the alleged condition prior to the accident ( see Rodriguez v. Bronx Zoo Rest., Inc., 110 A.D.3d 412, 972 N.Y.S.2d 31 [1st Dept.2013] ). Plaintiff's affidavit does not conflict with his deposition testimony ( see Alvia v. Mutual Redevelopment Houses, Inc., 56 A.D.3d 311, 312, 868 N.Y.S.2d 25 [1st Dept.2008] ). Defendant property manager's fact-based argument that it cannot be held liable under the Administrative Code is raised for the first time on appeal, and we decline to review it ( see e.g. Ta–Chotani v. Doubleclick, Inc., 276 A.D.2d 313, 714 N.Y.S.2d 34 [1st Dept.2000] ).

  10. Sanchez v. Irun

    83 A.D.3d 611 (N.Y. App. Div. 2011)   Cited 15 times

    In any event, the primary issue in this case is whether plaintiffs injuries were proximately caused by the absence of any handrails on the subject interior stairway leading out of the basement apartment, in purported violation of New York City Building Code (Administrative Code of City of NY) § 27-375 (f). It is uncontested that defendant owners caused the stairway and basement apartment to be built, and there is no assertion that the stairway ever had any handrails. Thus, defendants undisputedly created the alleged dangerous condition. Defendants have failed to prove, as a matter of law, that section 27-375 (f) does not apply to this interior stairway ( see Pappalardo v New York Health Racquet Club, 279 AD2d 134, 139-140; Hotzoglou v Hotzoglou, 221 AD2d 594). Additionally, plaintiff testified that, as she fell, she reached for a hand-rail, which was not there. Thus, issues of fact exist as to whether the absence of the handrail was a proximate cause of plaintiffs injuries ( see Alvia v Mutual Redevelopment Houses, Inc., 56 AD3d 311; Kanarvogel v Tops Appliance City, 271 AD2d 409, 411, lv dismissed 95 NY2d 902; Hotzoglou, 221 AD2d at 594; Lattimore v Falcone, 35 AD2d 1069).