Opinion
925 CA 19–00522
11-08-2019
Ann MCFEELY, Plaintiff–Respondent, v. MERCY HOSPITAL OF BUFFALO and Catholic Health System, Inc., Defendants–Appellants.
STILLWELL MIDGLEY, PLLC, BUFFALO (DAVID M. STILLWELL OF COUNSEL), FOR DEFENDANTS–APPELLANTS. JOSEPH E. DIETRICH, III, WILLIAMSVILLE, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
STILLWELL MIDGLEY, PLLC, BUFFALO (DAVID M. STILLWELL OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
JOSEPH E. DIETRICH, III, WILLIAMSVILLE, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she fell while walking down a stairway located on premises owned by defendants. Defendants appeal from an order that, inter alia, denied their motion for summary judgment dismissing the complaint. We reverse the order insofar as appealed from.
"[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case" ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] [internal quotation marks omitted] ). "Although the issue whether a certain condition qualifies as dangerous or defective is usually a question of fact for the jury to decide ..., summary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous" ( Langgood v. Carrols, LLC, 148 A.D.3d 1734, 1734–1735, 50 N.Y.S.3d 733 [4th Dept. 2017] [internal quotation marks omitted]; see Slattery v. Tops Mkts., LLC, 147 A.D.3d 1504, 1504, 47 N.Y.S.3d 189 [4th Dept. 2017] ; Przybyszewski v. Wonder Works Constr., 303 A.D.2d 482, 483, 755 N.Y.S.2d 435 [2d Dept. 2003] ). Here, defendants established their entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony, video and photographs of the stairway, and a surveillance video of the accident, which showed that the stairway was not in a dangerous or defective condition at the time of the accident (see Langgood, 148 A.D.3d at 1735, 50 N.Y.S.3d 733 ; Barakos v. Old Heidelberg Corp., 145 A.D.3d 562, 563, 43 N.Y.S.3d 324 [1st Dept. 2016] ; see generally Smith v. South Bay Home Assn., Inc., 102 A.D.3d 668, 669–670, 957 N.Y.S.2d 728 [2d Dept. 2013] ).
We further conclude that, in opposition, plaintiff failed to raise a triable issue of fact regarding the existence of a dangerous or defective condition because the record does not support her contention that she fell due to "optical confusion" created by the stairway ( Smith, 102 A.D.3d at 669, 957 N.Y.S.2d 728 ). The surveillance video shows that the stairway was reasonably well lit when plaintiff fell, that plaintiff was aware of the stairway, and that she used a handrail while walking down the stairs, all of which controvert her contention that she was under the illusion that she was traversing a flat surface at the time she fell. Furthermore, plaintiff's testimony that the stairs were the same or similar in color and "blended in together" is insufficient by itself to raise a triable issue of fact whether a dangerous or defective condition existed (see id. ; Schwartz v. Hersh, 50 A.D.3d 1011, 1011–1012, 856 N.Y.S.2d 640 [2d Dept. 2008] ; Murray v. Dockside 500 Mar., Inc., 32 A.D.3d 832, 833, 821 N.Y.S.2d 608 [2d Dept. 2006] ). Regardless, the surveillance video shows that a black mat was also laid on the floor at the end of the stairway and clearly demarcated the beginning of the floor from the end of the stairway.
Contrary to plaintiff's further contention, we conclude that the alleged defects identified by her "expert in his report were not relevant, as they were not the conditions alleged by ... plaintiff to have caused her accident" ( Jackson v. Michel, 142 A.D.3d 535, 536, 36 N.Y.S.3d 234 [2d Dept. 2016] ; see Murray, 32 A.D.3d at 833, 821 N.Y.S.2d 608 ). Finally, plaintiff's reliance on allegedly similar accidents in the stairwell did not raise an issue of fact because she "failed to show a similarity between the subject accident and the previous accidents" ( D'Alfonso v. County of Oswego, 198 A.D.2d 802, 803, 603 N.Y.S.2d 934 [4th Dept. 1993] ).