Opinion
Index No. 16-618172 Mot. Seq. No. 001-MD
12-03-2018
SARA KARRIS and GREGORY KARRIS, Plaintiffs, v. ANDREA SIMON, Defendant.
KELLY, LUGLIO & ARCURI, LLP Attorney for Plaintiffs LAW OFFICES OF KAREN L. LAWRENCE Attorney for Defendant
Unpublished Opinion
Motion Date 2-27-18
ADJ. DATE 4-10-18
KELLY, LUGLIO & ARCURI, LLP Attorney for Plaintiffs
LAW OFFICES OF KAREN L. LAWRENCE Attorney for Defendant
PRESENT: Hon. MARTHA L. LUFT Acting Justice Supreme Court
HON. MARTHA L. LUFT, ACTING JUSTICE
Upon the following papers read on this motion for partial summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, dated January 18, 2018: Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by defendant, dated March 22. 2018 ___; Replying Affidavits and supporting papers by plaintiff, dated April 6. 2018: Other ___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that plaintiffs' motion for summary judgment on the issue of defendant's negligence is denied.
Plaintiff Sara Karris (hereinafter plaintiff) commenced this action to recover damages for personal injuries she allegedly sustained on October 31, 2015, when she slipped and fell while attempting to descend a four-step, wooden staircase at a residence known as 27 Lesley Lane, Old Bethpage, New York, which is owned by her aunt, defendant Andra Simon. Plaintiff s husband, Gregory Karris, brought a derivative claim for loss of services. By their bill of particulars, plaintiffs allege that the staircase constituted a dangerous condition on the premises, as the wooden treads "had a shiny, glossy and slippery finish." They also allege defendant was negligent, among other things, in failing to make the staircase "less slippery," in failing to provide "slip resistant material" on the steps, in failing to have adequate handrails and bannisters, and in failing to warn of the alleged dangerous condition.
Plaintiffs now move for summary judgment in their favor on the issue of negligence, arguing that defendant and her husband created the alleged slippery condition on the staircase when they applied varnish to the wooden steps sometime in 1992 or 1993, and that defendant had actual knowledge of two other incidents where people slipped on the steps. Plaintiffs further argue that the steps were in a worn condition, and that defendant violated her duty of care as a landowner by failing to remedy such condition. Transcripts of the parties' deposition testimony are submitted in support of the motion. Defendant opposes the motion, arguing, in part, that there is no evidence that the staircase constituted a dangerous condition on the premises, and that plaintiff cannot identify what caused her foot to slip.
A party seeking summary judgment must make a prima facie showing that he or she is entitled to judgment as a matter of law by presenting sufficient admissible evidence showing that there is no triable issue of material fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 598 [1980]). If the moving party fails to meet this burden, summary judgment must be denied, regardless of the sufficiency of the opposing party's papers (see Winegradv New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316). If the moving party does establish entitlement to summary judgment, the burden shifts to the opposing party to present admissible, factual evidence showing that a genuine issue of material fact exists to defeat the motion (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 598).
In general, a landowner has a duty to maintain his or her property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Maheshwari v City of New York, 2 NY3d 288, 778 N.Y.S.2d 442 [2004]; Basso v Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 [1976]). The duty to keep premises in a reasonably safe condition is not dependent upon the plaintiffs status as an invitee, licensee or trespasser, or upon the status of the property as public or private (see Peralta v Henriquez, 100 N.Y.2d 139, 760 N.Y.S.2d 741 [2003]; Basso v Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564). Rather, a landowner "must act as a reasonable [person] in maintaining [his or her] property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564). However, a landowner is not an insurer of the safety of people on his or her property (see Maheshwari v City of New York, 2 NY3d 288, 778 N.Y.S.2d 442; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606 [1980]), and has no duty to warn or protect against an open or obvious condition which, as a matter of law, is not inherently dangerous (see Ross v Bretton Woods Home Owners Assn., Inc., 151 A.D.3d 774, 55 N.Y.S.3d 417 [2d Dept 2017]; Oldham-Powers v Longwood Cent. Sch. Dist., 123 A.D.3d 681, 997 N.Y.S.2d 687 [2d Dept 2014]; Cupo v Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40 [2d Dept 2003]).
To establish a prima facie case of negligence in a slip-and-fall action, a plaintiff must show that the defendant owed him or her a duty of care, that his or her injuries were caused by a dangerous or defective condition on the subject property, and that the defendant created the condition or had actual or constructive notice of it (see Farren v Board of Educ. of City of New York, 119 A.D.3d 518, 988 N.Y.S.2d 684 [2d Dept 2014]; Shea v Massapequa Union Free Sch. Dist, 117 A.D.3d 817, 985 N.Y.S.2d 675 [2d Dept 2014]; Davis v Rochdale Vil, Inc., 63 A.D.3d 870, 882 N.Y.S.2d 194 [2d Dept 2009]; Rubin v Cryder House, 39 A.D.3d 840, 834 N.Y.S.2d 316 [2d Dept 2007]; see generally Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.2d 120 [2002]; Donatien v Long Is. Coll. Hosp., 153 A.D.3d 600. 57 N.Y.S.3d 422 [2d Dept 2017]). To provide constructive notice, the dangerous or defective condition must have been visible and apparent, and must have existed for a sufficient length of time before the accident to permit the owner or possessor to discover and remedy it (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 [1986]; Kyte v Mid-Hudson Wendico, Inc., 131 A.D.3d 452, 15 N.Y.S.3d 147 [2d Dept 2015]; Bravo v 564 Seneca Ave. Corp., 83 A.D.3d 633, 922 N.Y.S.2d 88 [2d Dept 2011]).
Moreover, a plaintiff who brings a negligence action must establish prima facie that the defendant's negligence was a substantial cause of the event which produced his or her injury (Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166 [1980]; see Maheshwari v City of New York, 2 N.Y.3d 288, 778 N.Y.S.2d 442). Although proximate cause may be inferred from the facts and circumstances surrounding the plaintiffs injury, there must be sufficient evidence to permit a finding of proximate cause based not upon speculation, but upon the logical inferences drawn from such evidence (see Schneider v Kings Hwy. Hosp. Ctr., 67 N.Y.2d 743, 500 N.Y.S.2d 95 [1986]; Simion v Franklin Ctr. for Rehabilitation & Nursing, Inc., 157 A.D.3d 738, 69 N.Y.S.3d 64 [2d Dept 2018]; Hartman v Mountain Val. Brew Pub, 301 A.D.2d 570, 754 N.Y.S.2d 31 [2d Dept 2003]). Thus, a plaintiff in a slip and fall action may not recover damages for personal injuries when there is only a bare possibility that his or her fall was caused by the defendant's negligence (see Visconti v 110 Huntington Assoc, 272 A.D.2d 320, 707 N.Y.S.2d 884 [2d Dept 2000]; Borland v Cryder House, 203 A.D.2d 405, 610 N.Y.S.2d 554 [2d Dept], Iv denied 84 N.Y.2d 947, 621 N.Y.S.2d 511 [1994]). And while the issue of proximate cause ordinarily is for the trier of fact, it may be decided as a matter of law "where only one conclusion may be drawn from the established facts" (Derdiarian v Felix Contr. Corp., 51 N.Y.2d at 315, 434 N.Y.S.2d 166; see Howard v Poseidon Pools, 72 N.Y.2d 972, 534 N.Y.S.2d 360 [1988]).
Plaintiffs submissions are insufficient to establish a prima facie case of entitlement to judgment in her favor on the issue of defendant's negligence (see generally Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923). Plaintiff testified at her deposition that she visited defendant's split-level house and used the subject staircase to access the main living area approximately once or twice a week for more than 20 years. She testified that, upon arriving at the house on the day of the accident, she removed her shoes and socks before ascending the subject staircase, and that she remained at the premises, visiting with family members, for a couple of hours. She explained that prior to her fall, as she walked to the staircase, she observed her aunt and her cousin's friend sitting on the lower steps, near the wall where a handrail was mounted, and that she intended to pass them on the right side of the staircase, where there was no handrail. According to plaintiffs deposition testimony, the accident occurred as she began to descend the staircase, when her right foot slipped as she stepped down onto the first step, causing her to body to fall backwards down to the bottom landing. She testified that she did not observe any objects, debris, water or other substance on the floor of the living area or on the staircase before or after her accident, that she was still barefoot when she slipped, and that she did not come into contact with either her aunt or her cousin's friend when she fell down the stairs.
Defendant testified at her deposition that she and her husband purchased the house in 1989 and rebuilt the staircase in 1992 or 1993. She stated that a varnish was applied to the wooden treads when the staircase was rebuilt, and that no other work has been performed on the treads. Defendant testified that she does not apply wax or any cleaning products on the treads of the staircase, which she described as having a worn appearance. She testified that she was sitting on the second or third step, facing the front door, at the time of the alleged accident, and that she did not see plaintiff fall down the staircase. Rather, she observed plaintiff on the floor of the foyer, and assumed she slipped. She also testified that at least five years before plaintiffs accident, her own foot slipped off the bottom step of the staircase, and that her daughter had an incident on the staircase that she assumed was caused by her foot slipping on a step.
Contrary to the assertions by plaintiffs' counsel, defendant's deposition testimony that the wooden treads on the staircase were worn, that varnish had not been applied to them since the early 1990s, that on one occasion her foot slipped off the bottom step, and that she believes her daughter also slipped on the steps on a separate occasion, does not create a prima facie case that the staircase constituted a dangerous condition on the property (see Coletti v Chemical Bank, 258 A.D.2d 431, 684 N.Y.S.2d 587 [2d Dept 1999]; Varrone v Dinaro, 209 A.D.2d 508, 619 N.Y.S.2d 79 [2d Dept 1994]; see also Murphy v Conner, 84 N.Y.2d 969, 622 N.Y.S.2d 494 [ 1994]; cf. Johnson v 675 Coster St. Horn. Dev. Fund, 161 A.D.3d 635, 77 N.Y.S.3d 406 [2d Dept 2018]; Garcia v New York City Tr. Auth., 269 A.D.2d 142, 703 N.Y.S.2d 4 [1st Dept 2000]). Significantly, there is no evidence that the wooden tread on such step was slippery due to moisture, debris or some other substance on its surface. In fact, plaintiff did not testify that the step was slippery. Rather, plaintiffs deposition testimony indicates simply that her bare foot slipped when it came in contact with the first step. Generally, in the absence of the negligent application of wax or polish, there is no liability for a slip and fall on a walking surface due to smoothness (Conry v Avellino, 287 A.D.2d 478, 478-479, 731 N.Y.S.2d 205 [2d Dept 2001]). There also is no evidence in the record that the lack of a handrail on the right side of the staircase contributed to the accident (see Plowden v Stevens Partners, LLC, 45 A.D.3d 659, 846 N.Y.S.2d 238 [2d Dept 2007]).
Accordingly, plaintiffs' motion for summary judgment in their favor on the issue of defendant's negligence is denied.