Opinion
Index No. 507314/2018 Motions Sequence No. 3
04-08-2022
ALBERTO JOSE GONZALEZ, Plaintiff, v. 104 ELLIOT PLACE CORP., and 105 ELLIOT LLC, Defendants.
Unpublished Opinion
At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 8th day of April 2022.
PRESENT: HON. CARL J. LANDICINO, Justice.
DECISION AND ORDER
Carl J. Landicino, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered (NYSCEF)
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed......................................................... 69-82, Opposing Affidavits (Affirmations)......................................................... 86-90, Reply Affidavits (Affirmations).............................................................. 91-92
After a review of the papers and oral argument, the Court finds as follows:
The instant action results from an alleged trip and fall accident that occurred on January 11, 2018. Plaintiff Alberto Jose Gonzalez (hereinafter the "Plaintiff') allegedly injured himself after tripping, while he was walking up interior stairs at the premises known as 105 Elliot Place, in Bronx, New York (hereinafter the "Premises"). The Premises are apparently owned by Defendant 105 ELLIOT LLC (hereinafter "Defendant").
Defendant 104 ELLIOT PLACE CORP.'s motion to dismiss was granted without opposition on January 23, 2019 (NYSCEF #30).
The Plaintiff now moves (motion sequence #3) for an order pursuant to CPLR 3212 granting partial summary judgment on the issue of liability with respect to Defendant 105 ELLIOT LLC's negligence. The Plaintiff contends that the Defendant had a duty to maintain the Premises in a good state of repair and in safe condition, it breached mat duty and that Defendant's negligence was a proximate cause of Plaintiffs injuries. Further, the Plaintiff contends that the condition at issue was a defect as a matter of law. The Defendant opposes the motion. The Defendant contends that there is a material issue of fact as to whether it had actual or constructive notice of the defect. What is more, the Defendant contends that there is an issue of fact as to whether the alleged defect was the proximate cause of the Plaintiffs injuries.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues of material fact." Kolivas v. Kirchoff, 14 A.D.3d 493 [2d Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 1341, 320 N.E.2d 853 [1974]. The proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N..E.2d 572 [1986], Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]. "In detennining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party." Adams v. Bruno, 124 A.D.3d 566, 566, 1 N.Y.S.3d 280, 281 [2d Dept 2015] citing Valentin v. Parish, 119 A.D.3d 854, 989 N.Y.S.2d 621 [2d Dept 2014]; Escobar v. Velez, 116 A.D.3d 735, 983 N.Y.S.2d 612 [2d Dept 2014].
Once a moving party has made a. prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" Garnham & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2d Dept 1994]. However, "[a] plaintiff is no longer required to show freedom from comparative fault in establishing his or hex prima facie case..." if they can show "...that the defendant's negligence was a proximate cause of the alleged injuries." Tsyganash v. Auto Mall Fleet Mgmt, Inc., 163 A.D.3d 1033, 1034, 83 N.Y.S.3d 74, 75 [2d Dept 2018]; Rodriguez v. City of New York, 31 N.Y.3d 312, 320, 101 N.E.3d 366, 371 [2018].
Generally, in an action for negligence, a plaintiff must prove that the defendant owed him or her a duty to use reasonable care, that the defendant breached that duty and that the plaintiffs injuries were caused by such breach. See Akins v. Glens Falls City School Dist, 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648 [1981]. To impose liability upon a defendant for a plaintiffs fall, there must be evidence that a dangerous or defective condition existed, and that a defendant had actual or constructive notice of the condition and failed to remedy it within a reasonable time. See Christopher v. New York City Transit Authority, 300 A.D.2d 336, 752 N.Y.S.2d 76 [2d Dept 2002]; Brown-Phifer v. Cross County Mall Multiplex, 282 A.D.2d 564, 723 N.Y.S.2d 393 [2d Dept 2001]; Bonilla v. Starrett City at Spring Cr., 270 A.D.2d 377, 704 N.Y.S.2d 619 [2d Dept 2000]. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 647 [1986].
Turning to the merits of the motion made by the Plaintiff (motion sequence #3), the Plaintiff argues that his motion should be granted given that the Defendant had actual or constructive notice of the condition of the stair at issue. The Plaintiff also contends that the Defendant's failure to comply with the applicable building codes constitutes negligence per se. In support of his motion, the Plaintiff relies on the deposition testimony of the Plaintiff, the deposition testimony of Francisco Vega (superintendent of the Premises), the deposition testimony of Usher Anshel Egert (employee of property manager Meyers Management), an affidavit from Vincent Pici, P.E., and images of the alleged defect.
During his deposition, the Plaintiff states that he was walking up the stairwell at the Premises and tripped "when I started going from the third to the fourth floor, since it was so dark, which was the one that I tripped on and fell." (See Plaintiffs Motion, Exhibit E, Page 16). During his deposition, the Plaintiff identified the defect by identifying photographs of the defect. When asked if the photographs depict the condition of the stairway at the time of his accident, the Plaintiff stated "yes." (See Plaintiffs Motion, Exhibit E, Page 27 through 29).
Francisco Vega, superintendent of the Premises, testified that he mopped and swept the interior stairways two times a day, seven days a week. (See Plaintiffs Motion, Exhibit G, Page 21). Mr. Vega also testified, after identifying photographs of the stairs, that some of the stairs had been changed but that he was not the one who replaced any of the marble steps. "There are several of the stairs that have been changed." He additionally stated that the landlord ordered a few stairs to be changed but that he was unaware of how the landlord came to determine the need to repair the steps. (See Plaintiffs Motion, Exhibit G, NYSCEF #79, Pages 54-55). Usher Anshel Egert, employee of property manager Meyers Management, who testified on its behalf, acknowledged, after reviewing photographs of the stairs, that one of the steps had been repaired (See Plaintiffs Motion, Exhibit H, Page 69-70).
This testimony, taken together, is sufficient for the Plaintiff to show that the Defendant had constructive notice. "A photograph may be used to prove constructive notice of an alleged defect shown in the photograph if it was taken reasonably close to the time of the accident and there is testimony that the condition at the time of the accident was substantially as is shown in the photographs." Lustenring v. 98-100, 1 A.D.3d 574, 577, 768, N.Y.S.2d 20 [2d Dept 2003]. In the instant matter, the Plaintiff was able to testify that the photographs reflect the condition of the stairs at the time of the accident. In Gonzalez v. New York City Transit Auth., the Court held that constructive notice could be shown by identifying a defect through photographs taken five days after the alleged accident. See Gonzalez v. New York City Transit Auth, 87 A.D.3d 675, 677, 929 N.Y.S.2d 159, 162 [2d Dept 2011]; Kniffin v. Thruway Food Markets, Inc., 177 A.D.2d 920, 921, 576 N.Y.S.2d 678, 679 [3rdD ept 1991]; Farrar v. Teicholz, 173 A.D.2d 674, 675, 570 N.Y.S.2d 329, 330 [2d Dept 1991]. As aresult, the Plaintiff has provided sufficient evidence that the Defendant had constructive notice of alleged defective condition for a period of time prior to the accident to meet his prima facie burden.
The Court notes that while the Plaintiff did provide the Court with a Statement of Material Facts Upon Which There is No Genuine Issue Pursuant to 202.8-g, the Defendants did not. Accordingly, the statement of facts set forth by the Plaintiff is deemed admitted for the purposes of this motion. However, this does not alter the Court's determination, as the facts stated do not show that the Defendants had constructive notice of the alleged defect at issue. Moreover, much like a notice to admit, a Statement of Material Facts Upon which there is No Genuine Issue Pursuant to 202.8-g is not meant to address issues that '"were at the heart of the controversy' in this case." Nacherlilla v. Prospect Park All, Inc., 88 A.D.3d 770, 772, 930 N.Y.S.2d 643, 645 [2d Dept 2011]. In addition, legal conclusions and opinion are not proper matters for the 202.8-g Statements. See Lolly v. Brookdale Univ. Hosp. & Med. Ctr., 45 A.D.3d 537, 844 N.Y.S.2d 718 [2d Dept 2007]; Taylor v. Blair, 116 A.D.2d 204, 206, 500 N.Y.S.2d 133 [1st Dept 1986].
However, the Plaintiff has not proven as a matter of law that the condition alleged constituted a dangerous and defective condition and was not de minimis "The question of whether or not a dangerous or defective condition exists depends on the particular facts and circumstances of each case and is a question of fact for the jury..." See Guerrieri v. Summa, 193 A.D.2d 647, 598 N.Y.S.2d 4 [2d Dept 1993]. Even assuming the depth of the alleged defect, that measurement in itself does not render the condition defective or dangerous as a matter of law. In Trincere v. County of Suffolk (90 N.Y.2d 976, 977, 688 N.E.2d 489, 490 [1997]) the Court of Appeals held that "there is no 'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable." (Id. at 977). Therefore, granting summary judgment to a defendant "based exclusively on the dimensions of the ...defect is unacceptable." (Id. at 977-978). In fact, no measurements were provided.
The Court finds the expert opinions by both Vincent Pici, P.E., for the Plaintiff, and Gang Yang, M D., Ph.D., for the Defendant, to be conclusory and speculative. Neither expert inspected the Premises and although they both reach conclusions regarding the alleged defect at issue, neither explain how they came to this conclusion. What is more, the Defendant's expert failed to examine the Plaintiff. See Wass v. Cty. of Nassau, 166 A.D.3d 1052, 1053, 87 N.Y.S.3d 310, 312 [2d Dept 2018]. Moreover, any purported violations of the Codes referenced by Vincent Pici, P.E., do not constitute negligence perse, but rather serve as some evidence of negligence. See Elliott v. City of New York, 95 N.Y.2d 730, 734, 747 N.E.2d 760, 762 [2001].
In opposition, the Defendant has failed to rebut the Plaintiffs establishment that the Defendant had notice of the condition of the stairwell. The Defendant argues that the testimony of both Anshel Egert, employee of property manager, Meyers Management, and Francisco Vega, superintendent of the Premises, create an issue of fact regarding whether the Defendant had constructive notice of the condition at issue. However, this testimony was vague and failed to "demonstrate when the subject staircase was last inspected relative to the Plaintiffs accident." Hanney v. White Plains Galleria, LP, 157 A.D.3d 660, 661, 68 N.Y.S.3d 522, 524 [2d Dept 2018]; see also Buckshaw v. Oliver, 197 A.D.3d 691, 150 N.Y.S.3d 576, 577 [2d Dept 2021], Moreover, the Plaintiff identified the condition of the steps by means of a photograph. Although the Court cannot determine whether the stairwell was defective, the nature of the condition at issue indicates a condition caused over a period of time during which the Defendant would be expected to discover and repair it. Accordingly, Plaintiffs motion for summary judgment on the issue of liability is denied, however the question of whether the Defendant had constructive notice of the condition of the stairway is answered in the affirmative for purposes of trial.
Based on the foregoing, it is hereby ORDERED as follows: The motion by the Plaintiff (motion sequence #3) for summary judgment on the issue of liability is denied.
The foregoing constitutes the Decision and Order of the Court.