Opinion
01-13-2016
David SCHWARTZ, appellant, v. Moshe REISMAN, respondent.
Herschel Kulefsky (Ephrem J. Wertenteil, New York, N.Y., of counsel), for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondent.
Herschel Kulefsky (Ephrem J. Wertenteil, New York, N.Y., of counsel), for appellant.
Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated February 18, 2015, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff commenced this action to recover damages for injuries he contends he sustained when he fell down steps outside the defendant's home. He alleged that the steps were defective, inter alia, because of the difference in riser height between the first step and the other steps, and the absence of a handrail. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion.
The defendant failed to show, prima facie, that the steps and lack of handrail did not constitute a dangerous condition (see
Doughim v. M & U.S. Prop., Inc., 120 A.D.3d 466, 990 N.Y.S.2d 816 ; Swerdlow v. WSK Props. Corp., 5 A.D.3d 587, 588, 772 N.Y.S.2d 864 ), or that the conditions alleged were open and obvious, and not inherently dangerous as a matter of law (see Barone v. Risi, 128 A.D.3d 874, 9 N.Y.S.3d 620 ; Varon v. New York City Dept. of Educ., 123 A.D.3d 810, 998 N.Y.S.2d 433 ). Furthermore, contrary to the defendant's assertions on appeal, he failed to demonstrate that he did not have constructive notice of the alleged dangerous conditions prior to the subject accident (see DeSalvio v. Suffolk County Water Auth., 127 A.D.3d 804, 7 N.Y.S.3d 331 ; Alayev v. Juster Assoc., LLC, 122 A.D.3d 886, 998 N.Y.S.2d 83 ; Guzman v. CSC Holdings, Inc., 85 A.D.3d 1113, 926 N.Y.S.2d 613 ), or that he did not create the conditions. Since the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied his motion, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
MASTRO, J.P., RIVERA, LEVENTHAL and DUFFY, JJ., concur.