Opinion
605089/16
05-06-2019
Lena DEMAYO and Thomas Demayo, Plaintiffs, v. M.D. CARLISLE REALTY CORP. and Setauket Knolls Associates, L.P., Defendants.
For the plaintiffs: Charles G. Eichinger & Associates, P.C., 1601 Veterans Memorial Highway Suite 510, Islandia, New York 11749 For the defendants: Crafa & Sofield, P.C., 840 Franklin Avenue, Garden City, New York 11530
For the plaintiffs: Charles G. Eichinger & Associates, P.C., 1601 Veterans Memorial Highway Suite 510, Islandia, New York 11749
For the defendants: Crafa & Sofield, P.C., 840 Franklin Avenue, Garden City, New York 11530
Carmen Victoria St. George, J.
The following numbered papers were read upon this motion:
Notice of Motion/Order to Show Cause 14-25
Answering Papers 28-37
Reply 40
Briefs: Plaintiff's/Petitioner'
Defendant's/Respondent's
Defendants seek summary judgment dismissal of plaintiffs' complaint in this personal injury action. Plaintiff Lena Demayo (plaintiff) allegedly tripped and fell as she was leaving her apartment on December 17, 2015. Her husband, Thomas Demayo, sues derivatively. Plaintiffs oppose the instant motion.
Plaintiffs alleges that a broken/defective threshold, also referred to as a door saddle, located at the front door of their apartment, caused Lena Demayo (plaintiff) to fall. Defendants maintain that they are entitled to summary judgment because they did not create the alleged hazardous condition, nor did they have actual or constructive notice of same for a sufficient period of time to remedy it. Defendants also contend that plaintiff does not know what caused her to fall, that plaintiff has not specified the particular defect in the door saddle, that the photographs taken by plaintiff's husband do not reveal any dangerous or defective condition, and that, if the Court "is convinced that there was some sort of a defect at the entrance way of plaintiff's apartment, such a defect is trivial as a matter of law."
A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( Winegrad v. New York Univ. Med. Center , 64 NY2d 851 [1985] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact ( Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007] ). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiffs ( Makaj v. Metropolitan Transportation Authority , 18 AD3d 625 [2d Dept 2005] ).
In support of their motion, defendants submit, inter alia , the pleadings, portions of the deposition testimony of the plaintiffs, plaintiffs' daughter and defendants' superintendent of the apartment complex, and four photographs marked at depositions as defendants' Exhibits B through E.
The Bill of Particulars, verified by plaintiff, alleges that, on December 17, 2015, she tripped and fell over a defective threshold plate/door bar while she was exiting her apartment. She further alleges that the defendants were negligent in failing to keep the premises in good repair, in permitting this dangerous condition to remain at the premises, for causing the condition to be present, and for failing to remedy the condition. The Bill of Particulars does not specify any laws, statutes, regulations or ordinances that were allegedly violated, and no subsequent allegations as to any specific violations have ever been made.
According to the portion of plaintiff's testimony that was submitted to the Court, plaintiff and her husband moved into their apartment in September of 2015. The owner of the property and the operator of the apartment complex are the defendants. On the day of the accident, plaintiff was using a cane as the result of a prior trip and fall that she experienced approximately one year earlier, at her daughter's house. Plaintiff stated that she used the cane whenever she walked anywhere, including inside her apartment.
Before they moved into the apartment, plaintiff and her husband looked at it. She did not have any complaints about the front entrance, but she stated that she did not look down at the floors. After she and her husband moved in, she left and returned to her apartment through the front entrance almost every day until the date of the accident, without incident. Plaintiff did not make any complaints to anyone about the front door saddle prior to December 17, 2015, and she was not aware of any complaint made by her husband to anyone. Plaintiff did mention that her daughter, Gina, "did say something when she came in or out. I'm not sure." Plaintiff was unsure when Gina complained to plaintiff about the door saddle.
On the day that plaintiff fell, Gina had come to pick her up in the morning to take plaintiff for a haircut. The weather "was nice out," and there was no ice or snow on the ground. Plaintiff was wearing beige shoes. Plaintiff described the shoes as being a "slip-on" variety, with no heel.
Gina left the apartment first and plaintiff was following her out of the apartment. The apartment door has a storm door and an inside door. Gina did not hold the storm door for the plaintiff. Plaintiff stated that she was not carrying anything other than the cane in her right hand. Gina was carrying plaintiff's pocketbook. Plaintiff's husband was inside the apartment when plaintiff fell. As plaintiff was stepping out of the apartment, she had to hold the storm door open a little bit, and she fell.
When she was asked why she fell, plaintiff stated, "I don't know why... My feet caught onto something I believe because my feet went this way (indicating). My ankles turned like this (indicating)." Plaintiff fell forward. Plaintiff was asked what caught her feet, and she stated that her foot was under "a metal thing there," located "[a]t the foot of the door." Plaintiff stated that she had never really looked at that metal piece before the date of her accident.
The other non-sequential pages of plaintiff's deposition submitted by defendants reflect that plaintiff was shown defendant's Exhibits B through E, which are photographs of a door saddle. Plaintiff did not know when the photographs were taken. When asked, "[f]rom your recollection or using the photographs, can you tell us what it was that caught your foot or feet," plaintiff responded, "I don't know. I just walked out and the next thing, like I said, I flew over;" "[w]hen I went to walk out, my foot got stuck on something and I went forward." When asked again if she knows what it was that she tripped over, plaintiff said, "[n]o."
When plaintiff's husband testified at deposition, he stated that he met the superintendent, Joe, approximately one week after they moved in. Joe changed a fluorescent kitchen light bulb in the plaintiffs' apartment. Plaintiff's husband Thomas never complained to defendants about any issue concerning the doorway, and he stated that he never noticed any problem or defect with respect to the door saddle. Thomas was also shown defendants' Exhibits B through E, the photographs of the door saddle. Thomas took those pictures after the subject accident, and those photographs were disclosed to defense counsel. When he viewed the pictures, he identified the wooden part of the door saddle, saying, "Yes. This is the wood. I see the screw in there. I guess it's wood rotted."
Thomas also testified that he never measured the height difference between the tile floor inside the apartment's door and the door saddle, but he estimated that it is an approximately one-inch difference.
Plaintiffs' daughter, Gina, also testified. The submitted portions of her deposition testimony include statements that she tripped two or three times over the front doorway prior to plaintiff's accident. Gina described that "the lip was a little big and [she] stumbled, but [she] was able to catch [herself]," and that her younger son also "tripped a little." Gina was referring to the door saddle made of metal and wood that she believed was a little higher than normal. Gina was not able to estimate the height differential. Gina believed that she may have mentioned these prior tripping incidents to her dad, Thomas, but she was not sure she did; however, she also testified that she told her father to put a rug on the floor inside the apartment doorway to make the area level with the doorway saddle. Gina did not make any complaints to defendants concerning the condition of the doorway/saddle.
According to Gina's testimony, on the day of the accident, she left the apartment first to go to her car that was parked at the curb. When she was halfway to her car, she heard the storm door thump and her mother make sounds like she was in pain. Gina did not witness her mother's fall. Gina testified that the only thing that plaintiff was carrying at the time she fell was her own pocketbook. According to Gina, plaintiff stated that "she just tripped." Gina did not ask plaintiff at that time what caused plaintiff to trip because, "you're not thinking of that. You're thinking of her in pain." After her fall, plaintiff's "[o]ne leg was like bent so her foot was out and one foot was leaning against the lip of the front door."
The Court recognizes that when a defendant demonstrates that a plaintiff does not know what caused her to fall, the defendant has established its entitlement to summary judgment as a matter of law. Causation cannot be based upon speculation ( Califano v. Maple Lanes , 91 AD3d 896 [2d Dept 2012] ; Miles v. County of Dutchess , 85 AD3d 878 [2d Dept 2011] ; Aguilar v. Anthony , 80 AD3d 544 [2d Dept 2011] ; Martone v. Shields , 71 AD3d 840 [2d Dept 2010] ; Skay v. Public Library of Rockville Centre , 238 AD2d 397 [2d Dept 1997] ; Leary v. North Shore University Hospital , 218 AD2d 686 [2d Dept 1995] ; Vincio v. Marriott Corporation , 217 AD2d 656 [2d Dept 1995] ; Lynn v. Lynn , 216 AD2d 194 [1st Dept 1995] ).
Here, based upon the foregoing deposition testimony, defendants have not demonstrated the absence of a material issue of fact regarding what caused plaintiff to trip and fall. Plaintiff tripped as she was crossing the threshold of her apartment door, and she testified that her feet became caught, causing her to fall forward. Moreover, she testified that her foot was under "a metal thing" at the base of the door after she fell. Plaintiff's daughter also testified that the saddle, which she referred to as a "lip," was higher than normal, and that she herself had tripped on that same saddle. When plaintiff's daughter went to assist her mother immediately after plaintiff fell, Gina observed that one of plaintiff's feet was "leaning against the lip of the front door." Thus, plaintiff's claim that she tripped on the threshold is not speculative; rather, there is testimony that supports her claim.
Although defendants claim that there is no evidence as to the alleged defect in the subject saddle, the submitted testimony raises triable questions of fact as to whether the saddle was too high, or, based upon Thomas' testimony, whether the wooden portion of the saddle was rotted.
Defendants' witness, superintendent of the complex, Joseph Schiek, testified that, before the plaintiffs took occupancy, their apartment was re-painted and cleaned, and that new tile was put down in the foyer area just inside the front door and also in the kitchen. He testified generally that the door saddles at the complex are made of wood and aluminum, that the saddles are secured by screws, that the saddles are "usually about three-quarters of an inch high," and that the tiles placed in the foyer abut up against the door saddle; they are not placed underneath the saddle. It is not clear from the ten pages of deposition testimony submitted for the Court's consideration that Mr. Schiek is the person who installed the tile in the foyer.
According to Mr. Schiek, he did not replace the saddle in the plaintiffs' apartment, nor did he or his helper ever perform any repairs to it. On the other hand, Mr. Schiek stated that he never looked at the subject door saddle because he "[n]ever had no complaints about it;" yet, he also testified that he always inspects the door saddles before someone moves in. According to Mr. Schiek, after inspecting a saddle prior to a new tenant moving in, he does not inspect the saddles "until they call and complain; [t]hat's the way it's been." Mr. Schiek acknowledged that he did not inspect the subject saddle subsequent to plaintiff's fall.
He testified generally that, in replacing the tile in the foyer area, the person performing the work would be on their knees and would be positioned to observe the saddle. The saddle would be visually inspected for defects, and those defects would be remedied. Mr. Schiek explained that "[i]f it's the metal or the aluminum, we would file it down or sand it up a little bit. If it's the wood, we would just fill it with wood filler;" "[y]ou don't want any cracks in it. If you leave stuff like that alone, people are going to get stuck on it or they're going to break the wood, then you have more problems;" "[p]eople could fall if they are not careful, I guess." Thus, Mr. Schiek testified that he considers safety factors when observing a door saddle in defendants' apartment complex.
The submitted photographs, viewed in color by the Court on the e-filing system (NYSCEF), do not depict the height of the saddle in comparison to the foyer floor; therefore, there is no evidence as to the actual height differential. Thomas Demayo's estimate was just that, and Mr. Schiek's testimony that the door saddles in the complex were "usually about three-quarters of an inch high" is insufficient to establish the height of the subject door saddle.
"A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses" ( Hutchinson v. Sheridan Hill House Corp. , 26 NY3d 66, 79 [2015] ).
"[T]here is no ‘Noinimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" ( Trincere v. County of Suffolk , 90 NY2d 976 [1997] ). In examining all of the facts presented, including width, depth and appearance of the defect, along with the time, place, and circumstances of the injury, a Court can also properly consider photographs that fairly represent the accident site ( Platkin v. County of Nassau , 121 AD3d 879 [2d Dept 2014] ). "Photographs of a defect which fairly and accurately reflect how it appeared on the date of the accident may be used to demonstrate whether [the alleged defect] is trivial" ( Das v. Sun Wah Restaurant , 99 AD3d 752, 754 [2d Dept 2012] ).
As noted, in this case the photographs are insufficient to assist the Court in determining the dimensions of the saddle, and defendants' own witness failed to provide a precise measurement of the subject saddle; accordingly, the Court cannot determine if the alleged defective condition was trivial as a matter of law.
It is well settled that a property owner is charged with the duty to maintain the premises in a reasonably safe condition ( Katz v. Westchester County Healthcare Corp. , 82 AD3d 712, 713 [2d Dept 2011] ). Of course, a property owner may be held liable for damages resulting from a hazardous condition on its premises if it created the hazardous condition or had either actual or constructive notice of the condition in sufficient time to remedy it ( Gordon v. American Museum of Natural History , 67 NY2d 836, 837 [1986] ).
Although Joseph Schiek's testimony demonstrates that the defendants did not have actual notice based upon a complaint made about the subject saddle, there is no testimony from defendants establishing that the subject saddle was ever inspected, either just prior to plaintiffs moving into the apartment, or when the apartment was cleaned and the tile floor installed in the foyer. According to Mr. Schiek, the installer, which would have been either himself or his helper, would have been in a position to observe the condition of the door saddle when installing the floor; yet, Mr. Schiek's testimony was of a general nature, which does not establish that defendants did not have actual notice derived from the foyer floor installation.
Furthermore, the submitted portions of Mr. Schiek's deposition testimony establish that the door saddles are only inspected prior to new tenants moving in, or if there is a complaint. Thus, there is no evidence of routine inspections and maintenance performed on the door saddles to keep them in good repair.
Reference to such general practices is insufficient to establish a lack of constructive notice of a defective or dangerous condition ( Rong Wen Wu v. Arniotes , 149 AD3d 786, 787 [2d Dept 2017] ).
There is also no evidence submitted by defendants establishing that they did not create a dangerous condition concerning the subject door saddle. Since it is defendants' apartment complex, they are in a position to control and maintain the premises. Without any testimony or other evidence as to when and how the subject saddle was installed, defendants cannot establish that they did not create the condition.
Defendants have failed to establish their prima facie entitlement to summary judgment as a matter of law with respect to any of the theories advanced in their moving papers.
In view of the foregoing determination, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition are sufficient to raise a triable issue of fact (see Levin v. Khan , 73 AD3d 991 [2d Dept 2010] ; Kjono v. Fenning , 69 AD3d 581[2d Dept 2010] ).
The Court is compelled to note that, had the defendants carried their prima facie burden, their motion would have nevertheless been denied because the complete deposition transcripts submitted in opposition to the instant motion raise triable issues of fact.
In the complete deposition testimony of Mr. Schiek, he acknowledged that defendants' Exhibit D marked at deposition is a photograph of a door saddle and molding. He testified that the saddle depicted in the photograph is made of metal and wood, and that the molding "looks like there's some rot in there;" "Rot. Like the wood might be rotted right there. It could be missing paint, or it could be rot, I don't know. I can't tell by the picture." Mr. Schiek continued, stating that if the wood molding were rotted, it would create a gap between the saddle and the foyer floor.
When shown defendants' Exhibit E, Mr. Schiek identified a screw in the saddle, saying that he could not "tell if it's missing or not. It looks like it might be rusted out or something." When asked if the screw heads rust out, he said, "[t]he heads, they snap off, yeah, sometimes." When asked why the screw heads snap off, he answered, "[t]oo much water, you know, the rain hits it." None of the pages of the transcript containing the foregoing testimony was included by defendants upon their motion.
Although Mr. Schiek testified that the saddle of the plaintiffs' apartment did not look like the condition depicted in the photographs when the foyer tile was installed, which was right before plaintiffs rented the apartment, Mr. Schiek explained that the rotting of the saddles can take "anywhere from a month to a year" to occur. He further acknowledged that the saddle depicted in the defendants' photographs C and D showing rust on the wooden parts could have developed during the time period from September 2015 to the date of plaintiff's accident, "if there is enough water there, sure." When asked why there would be water in the area of the saddle, Mr. Schiek responded that there could be a leak coming through the door, or wet boots, or a large amount of snow. None of the pages of the transcript containing this testimony were submitted by defendants.
Also not submitted by defendants are the latter pages of Mr. Schiek's testimony concerning defendants' Exhibit C where he states that "this molding it looks like it could be rotted;" that he did not install the subject door saddle because he does not use molding; with molding, "all you are doing is hiding your mistakes," and the reason there is molding on the saddle is because whoever installed it might have made a mistake: "that's probably why there is molding there." In looking at a photograph identified as plaintiffs' Exhibit 1, Mr. Schiek said that it "looks like rotted molding. You got a screw, and then you have rusted where the screw should be, if it's not there still, I don't know." Finally, Mr. Schiek testified that when he leaves an apartment, "everything is in good shape," and he "would not leave it like that," referring to the pictures of the subject door saddle shown to him.
Defendants' summary judgment motion is denied.
The foregoing constitutes the Decision and Order of this Court.