Summary
In Asaro v Montalvo, 26 AD3d 306, 812 NYS2d 558 (2d Dept 2006), the defendant did not establish, as a matter of law, that the premises were exempt from the applicable building code ordinance with regard to an absent handrail.
Summary of this case from Navarre v. KetchamOpinion
2004-06151.
February 7, 2006.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated June 1, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.
Bornstein Emanuel, P.C., Roslyn Heights, N.Y. (Anita Nissan Yehuda of counsel), for appellant.
Galvano Xanthakis, P.C., New York, N.Y. (Matthew Kelly of counsel), for respondents.
Before: Adams, J.P., Luciano, Mastro and Skelos, JJ., concur.
Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she fell while descending an interior staircase at the defendants' home.
The defendants acknowledged that the segment of the staircase where the plaintiff fell did not have a handrail, and they did not establish, as a matter of law, that the premises was exempt from the applicable building code ordinance ( see Viscusi v. Fenner, 10 AD3d 361). However, they contend that the plaintiff's alleged failure or inability to establish the cause of her fall was fatal to her case ( see Hennington v. Ellington, 22 AD3d 721; Birman v. Birman, 8 AD3d 219).
Contrary to the conclusion of the Supreme Court, the defendants failed to establish a prima facie entitlement to judgment as a matter of law. Even if the fall was precipitated by a misstep, "[g]iven the plaintiff's testimony that [she] reached out to try to stop [her] fall, there is an issue of fact as to whether the absence of [handrails] was a proximate cause of [her] injury" ( Kanarvogel v. Tops Appliance City, 271 AD2d 409, 411; see Viscusi v. Fenner, supra at 362; Lattimore v. Falcone, 35 AD2d 1069).