Opinion
Index No. E2019000265
08-12-2021
JEANNE ALEXANDER, Plaintiff, v. BONITA SEELBINDER, Defendant.
Unpublished Opinion
DECISION AND ORDER
Hon. Christopher S. Ciaccio, Acting Supreme Court Justice
Plaintiff in this action alleges that she sustained personal injuries when, while at the defendant's residence, she fell down a stairwell in the "breezeway" area which led from the breezeway to the basement. At the time of the accident, plaintiff was the real estate agent showing the house to a prospective buyer, and she asserts that the stairwell and the breezeway area lacked proper lighting as well as a handrail/guardrail or other safety device.
The defendant now moves pursuant to CPLR 3212 for an Order granting summary judgment and dismissing the Complaint (Motion No. 2). The motion was opposed and hereby is determined on submissions (NYSCEF Documents Nos. 19-32 and 34-50). For the reasons set forth below, the defendant's motion is DENIED.
The facts are not in dispute. Plaintiff had never been to the residence before the accident. The plaintiff entered the breezeway from the garage, and almost directly opposite, there were stairs that descended into the basement. The plaintiff testified at her deposition that she proceeded down the stairs - two steps - and was looking for a light switch when she "stepped down into an empty space" and fell. The light switch was in fact mounted on the breezeway wall at the top of the stairs and activated a ceiling light at the bottom of the stairs. The stairs, as can be seen in the photographs, lacked a handrail.
Based on the record as a whole, including the defendant's Statement of Undisputed Material Facts and the plaintiffs Response to Statement of Undisputed Material Facts, the Court concludes for the purpose of determining this motion that the staircase at issue was located in the breezeway of the residence, not in the garage as described by the plaintiff in her deposition testimony.
Non-party witness Mary Louise DiGirolamo, the prospective homebuyer, testified that the day at issue was sunny, bright and warm. Although the breezeway was not dark, coming in from the sunshine she had to "adjust her sight."
DISCUSSION
It is well-settled that the proponent of a summary judgment motion must make 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 necessitating a trial (Oddo v City of Buffalo, 159 A.D.3d 1519,1520 [4th Dept 2018]; Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851,853 [1985]). The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; CPLR 3212 [b]; see also Malamas v Toys R Us-Delaware, Inc., 94 A.D.3d 1438, 1438 [4th Dept 2012] [a moving party must affirmatively demonstrate the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof]). Proof offered by the moving party must be in admissible form. Further, the evidence should be viewed in the light most favorable to the party opposing the motion. (See Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Dix v Pines Hotel, Inc., 188 A.D.2d 1007,1007 [4th Dept 1992].) Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez, 68 N.Y.2d at 324).
"'In a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall' without engaging in speculation . . . 'Although [mere] conclusions based upon surmise, conjecture, speculation or assertions are without probative value ..., a case of negligence based wholly on circumstantial evidence may be established if the plaintiffs show[ ] facts and conditions from which the negligence of the defendants] and the causation of the accident by that negligence may be reasonably inferred'" (Dixon v Superior Discounts & Custom Muffler, 118 A.D.3d 1487 1487-1488 [4th Dept 2014] [internal citations omitted]).
Here, plaintiff has sustained her burden by presenting evidence - consisting of her testimony - of a dark and unlit staircase that lacked a railing, conditions that create at least a question of fact as to whether they were dangerous to unsuspecting persons.
In response the defendant argues first of all that the plaintiff cannot specifically identify the cause of her fall and that any notion that lack of lighting or the lack of a handrail caused her to fall is speculative. This argument, however, is not dispositive where the plaintiff has testified that she "was looking for a light switch and that's when [she] stepped down into empty space," and therefore causation, either by the lack of lighting or the lack of a handrail or both, can be "reasonably inferred'" (Dixon v Superior Discounts & Custom Muffler, 118 A.D.3d 1487, 1487-1488 [4th Dept 2014] [internal citations omitted]).
Defendant also argues that even if the condition of the staircase was defective, she had 1) no notice of the defect, and 2) it was open and obvious. The facts suggest otherwise. The poorly lit staircase (when the switch was off) had existed the entire time the defendant owned the house. and the fact that she did not deem the staircase dangerous doesn't mean it wasn't dangerous for someone who didn't know where the light switch was. As to whether the defect was open and obvious, the light switch on the wall gave no indication that it was for the purpose of turning on a light at the bottom of the stairs. Plaintiff was obligated in her role as a realtor to show all parts of the house, and it was reasonable for her to take a step or two down the stairs and assume that a light switch would be on the stairway wall - which it wasn't.
In any event, the fact that a defect may be open and obvious does not negate a landowner's duty to maintain its premises in a reasonably safe condition, but it may raise an issue of fact as to the plaintiffs comparative negligence (Bullock v Angry Goat Pub, Inc., 2021 NY Slip Op 04426 [4th Dept 2021]; Ruiz v Hart Elm Corp., 44 A.D.3d 842, 843 [2d Dept 2007]). The issue of whether a dangerous condition is open and obvious is fact-specific, and thus usually is a question for the jury (Id; McKnight v Coppola, 113 A.D.3d 1087, 1087 [4th Dept 2014]).
The defendant's failure to mark the staircase or alert the plaintiff to an appropriate light switch in any meaningful fashion, in conjunction with the lack of a handrail, is legally sufficient and adequately supported by the record to preclude summary judgment (see Chafoulias v 240 E. 55th St. Tenants Corp., 141 A.D.2d 207, 211 [1st Dept 1988] [whether the color and arrangement of the vestibule area created a dangerous condition or defect is a matter within the common knowledge and experience of jurors]; Atkins v United Ref. Holdings, Inc., 71 A.D.3d 1459, 1460 [4th Dept 2010]; see also McKnight v Coppola, 113 A.D.3d 1087, 1088 [4th Dept 2014] [defendant's own submissions raised triable issues of fact whether the danger posed by the proximity and appearance of the bathroom and basement doors was open and obvious; defendant also failed to meet his burden of establishing that he discharged his broader duty to maintain the property in a reasonably safe condition or that plaintiffs conduct was the sole proximate cause of her fall]).
The Court concludes that the defendant failed to meet her initial burden of establishing as a matter of law that she was not negligent or that her alleged negligence was not a proximate cause of the plaintiffs injuries.
CONCLUSION
Accordingly, the defendant's motion for summary judgment and dismissal of the Complaint is DENIED.
Any additional relief requested in the defendant's motion, but not specifically addressed herein, is hereby DENIED.
SO ORDERED.