Steinberger v. SH Greek Restaurant, Inc.

Full title: ELISSA STEINBERGER, as Administratrix of the Estate of DAVID STEINBERGER…

Court: Supreme Court of the State of New York, New York County

Date published: Jan 9, 2009

2009 N.Y. Slip Op. 30080 (N.Y. Sup. Ct. 2009)

Opinion

111825/05.

January 9, 2009.

DECISION AND ORDER

JANE S. SOLOMON, Judge.Page 2

Motion sequence numbers 003 and 004 are consolidated herein for disposition. This matter arises from a tragic accident that occurred on November 27, 2004 at Ithaka Restaurant (Ithaka), located at 308 East 86^th Street, New York, New York. On that evening, plaintiff Elissa Steinberger and her husband, David Steinberger, were dining at Ithaka with two other guests. The complaint states that Mr. Steinberger sustained injuries resulting in his death after falling down a flight of stairs at the main level of the restaurant on his way to the men's room located in the basement. After his fall, an unidentified woman was heard to shout words to the effect that "your friend has fallen down the stairs."

Plaintiffs (hereinafter, collectively, Steinberger) claim that Mr. Steinberger's injuries were caused by Ithaka's negligent maintenance of the premises, including defective conditions existing in the staircase, to wit, improper illumination, inadequate handrails, improper surfacing and tread, and improper and inconsistent heights of the risers.

In motion sequence number 003, defendants S H Greek Restaurant, Inc. (d/b/a Ithaka), Ithaka Restaurant, Timoleon Vlahopoulos, and Charilaos Hatziparaskevas (collectively, hereinafter, the Restaurant) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims against them on the ground that Steinberger failed to establish that their negligence was the proximate cause of Mr. Steinberger's death.

In motion sequence number 004, defendants John Livanos and Zan Diakos, owners of the building housing Ithaka (hereinafter, the Owners) move, also pursuant to CPLR 3212, for summary judgment: (i) dismissing the complaint and all cross claims as against them; and (ii) in the event that the complaint is not otherwise dismissed, for conditional summary judgment on their cross claims against the co-defendants for indemnification.

Summary judgment is governed by CPLR 3212, which provides in subsection (b) that plaintiff must show that "there is no defense to the cause of action or that the cause of action or defense has no merit." Here, the movants 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. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957).

Once this prima facie showing has been made, the burden shifts to Steinberger to produce evidentiary proof in admissible form sufficient to raise a triable question of fact which, if credited by the jury, is sufficient to rebut defendants' showing. Ramos v Howard Indus., 10 NY3d 218, 224 (2008). In this regard, any expert affidavit offered as rebuttal evidence "must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor." Adamy v Ziriakus, 92 NY2d 396, 402 (1998) (citation omitted); see also Diaz v New York Downtown Hosp., 99 NY2d 542, 544 (2002) (speculative or unsupported expert assertions are insufficient to withstand summary judgment).

Although, as a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof ( Pace v International Bus. Mach. Corp., 248 AD2d 690, 691 [2^nd Dept 1998], quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 [4^th Dept 1992]), here, the Restaurant may meet its burden of establishing prima facie entitlement to judgment as a matter of law by showing that there was no significant causal connection between the alleged negligence and Mr. Steinberger's death. See Heckstall v Pincus, 19 AD3d 203, 204 (1^st Dept 2005) (lack of causation coupled with failure of nonmovant to adequately show causation warrants dismissal); compare Fuller v Preis, 35 NY2d 425, 429 (1974) (wrongful suicide action dismissed); Bickford v St. Francis Hosp., 19 AD3d 344, 345 (2^nd Dept), lv denied 5 NY3d 710 (2005); see also Anzolone v Long Island Care Ctr., 26 AD3d 449, 451 (2^nd Dept 2006) (failure to raise triable issue of fact on the issue of causation warrants dismissal).

Here, defendants repeatedly, and erroneously, argue that there is no evidence of the cause of Mr. Steinberger's death. In fact, the Certificate of Death states that Mr. Steinberger died due to "blunt impacts of head with subdural and epidural hemorrhage." The fall likely caused his death. However, as defendants also note, and Steinberger does not successfully contest, there is no non-speculative theory in the complaint as to what caused him to fall, and then hit his head with the ensuing fatal outcome. In addition, although the complaint offers many putative code violations related to the structure of the stairway in question, there is absolutely no connection offered between these violations and the accident. There is evidence that an unavailable party may have witnessed Mr. Steinberger's fall, although not necessarily that the initiating event was seen. But there is no evidence that the alleged defects in the stairway actually caused the fall. It is just as likely that those defects had nothing to do with the fall as that they did. See Morris v Solow Mgt. Corp. Townhouse Co., 46 AD3d 330, 331 (1^st Dept 2007), Iv dismissed 11 NY3d 751 (2008). That being said, defendants have demonstrated prima facie entitlement to judgment as a matter of law dismissing the wrongful death cause of action. See Bickford, 19 AD3d at 345.

To defeat this outcome, Steinberger is required to raise a triable issue of fact as to causation (CPLR 3212; Grzelecki v Sipperly, 2 AD3d 939 [3^rd Dept 2003]). In an effort to do so, Steinberger only offers that she is entitled to the benefit of the Noseworthy Doctrine, which slightly shifts the burden of proof for a deceased accused of contributory negligence from the plaintiff to the defendant because the plaintiff is not alive to speak for himself. Noseworthy v City of New York, 298 NY 76, 80 (1948).

However, the Noseworthy Doctrine does not apply where, as here, "plaintiff and defendant are similarly situated insofar as accessibility to the facts of the deceased's death is concerned." Lynn v Lynn, 216 AD2d 194, 195 (1^st Dept 1995) (citation omitted); accord Morris, 46 AD3d at 331. There is no indication that the Restaurant may have any information that Steinberger does not have. Lynn, 216 AD2d at 195; see also Walsh v Murphy, 267 AD2d 172 (1^st Dept 1999). Moreover, the Doctrine does not obviate the need for Steinberger to introduce prima face evidence of negligence ( Lynn, 216 AD2d at 196), nor does it allow for speculation, guess or surmise in substitute for competent evidence. Holliday v Hudson Armored Car Courier Serv., 301 AD2d 392, 398 (1^st Dept), lv dismissed in part, denied in part 100 NY2d 636 (2003).

It is uncontested that an unidentified woman shouted, at the time of the incident, "your friend has fallen down the stairs." Even according this hearsay evidence the benefit of every favorable inference ( Myers v Fir Cab Corp., 64 NY2d 806), it is not of sufficient probative value to elucidate the question of proximate cause. The parties do not differ on whether Mr. Steinberger fell, but, rather, only on the cause of that fall. This evidence offers nothing to enable a jury to reach a non-speculative verdict based on logical inferences as to the cause of the incident. Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744 (1986); see also Gayle v City of New York, 92 NY2d 936, 937 (1998); Rosado v Kulsakdinun, 32 AD3d 282, 284 (1^st Dept 2006) (vague and speculative evidence may not be used to support the inference of negligence and proximate cause); Velez v 1163 Holding Ltd., 215 AD2d 276, 277 (1^st Dept 1995) (summary judgment appropriate where there is no eyewitness to a fall and jury would be forced to speculate).

Finally, Steinberger offers the opinion of an expert, who concludes that the defects in the stairway "could cause a pedestrian to lose balance and fall at the subject stairway." Schwartzberg Affidavit, ¶ 10; see also ¶¶ 12-17. This is far from a creditable conclusion as to the actual cause of Mr. Steinberger's fall. What is more, no reasonable inferences as to proximate cause can be drawn from Schwartzberg's opinion that the staircase violated several provisions of the New York City Administrative Code, creating an unsafe condition, in the absence of any evidence connecting the alleged violations to Steinberger's fall. See Lynn, 216 AD2d at 194; Reed v Piran Realty Corp., 30 AD3d 319, 320 (1^st Dept 2006), lv denied 8 NY3d 801 (2007). Nor does Schwartzberg's speculative conclusion that the accident was caused by the Restaurant's negligence rehabilitate this flaw. Murphy v Conner, 84 NY2d 969 (1994) (an expert's conclusory and speculative opinion is insufficient to defeat summary judgment); see also Pena v Women's Outreach Network, 35 AD3d 104, 111 (1^st Dept 2006).

According Steinberger the benefit of every favorable inference ( Myers, 64 NY2d at 806), Steinberger has failed to raise a triable issue of fact as to whether the Restaurant's negligence or conduct proximately caused Mr. Steinberger's injuries. Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 (1998); Anzolone, 26 AD3d at 451. Indeed, Steinberger's "opposition consists mainly of a repetition of the allegations contained in the complaint — namely that the decedent had fallen down a set of stairs in a building owned and operated by defendant[s],. . . and that this fall was caused by defendant[s'] negligence. Such is not sufficient opposition to defendant[s'] motion for summary judgment, for only the existence of a bona fide issue raised by evidentiary facts 'and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment.'" Black v Loomis, 236 AD2d 338, 338 (1^st Dept 1997) (citations omitted).

Even though there is no requirement that Steinberger exclude every other possible cause other than a defendant's negligence, "the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation," Lynn, 216 AD2d at 195-196 (citation omitted); accord McNally v Sabban, 32 AD3d 340, 342 (1^st Dept 2006). Here, the evidence reveals that neither party knows how, why, or even specifically from where, Mr. Steinberger fell. Allowing this matter to go to the jury would invite rank speculation and surmise over logical inference and evidence. Kane v Estia Greek Restaurant, 4 AD3d 189, 190 (1^st Dept 2004). Under these circumstances, the complaint is dismissed against the Restaurant.

As the complaint against the Restaurant is dismissed, the underlying causes of action against the moving Owners, which are based upon the same theory of liability, also must be dismissed. Accordingly, the Owner's motion for conditional summary judgment on its cross-claim for indemnification against the Restaurant is moot. The Restaurant's and Owner's cross-claims are framed as seeking common law or contractual indemnification in the event that plaintiff recovers of them, so they are dismissed as moot upon searching the record.

Finally, as these motions are silent as to the role, if any, of defendants George Santis and Sotoris Karamouzis, the complaint remains as against each. Accordingly, it hereby is

ORDERED that the motions for summary judgment dismissing the complaint (motion sequence number 003 and 004) are granted and the complaint hereby is severed and dismissed as against defendants S H Greek Restaurant, Inc., Ithaka Restaurant, Timoleon Vlahopoulos, Charilaos Hatziparaskevas, John Livanos, and Zan Diakos, and the Clerk is directed to enter judgment in favor of said defendants with costs and disbursements as taxed; and it further is

ORDERED that the cross-claims by defendants S H Greek Restaurant, Inc., Ithaka Restaurant, Timoleon Vlahopoulos, Charilaos Hatziparaskevas, John Livanos, and Zan Diakos are dismissed; and it further is ORDERED that the remainder of the action shall continue, and counsel for remaining parties shall appear in Part 55 for a pre-trial conference on February 2, 2009 at 2 PM, and plaintiff's counsel shall give notice of this conference to all remaining parties who have appeared.