Opinion
6905 Index 158601/14
06-19-2018
Wilhelm DERIX, Plaintiff–Respondent, v. The PORT AUTHORITY OF NEW YORK & NEW JERSEY, et al., Defendants, AlliedBarton Security Services LLC, Defendant–Appellant.
Wood Smith Henning & Berman LLP, New York (Kevin T. Fitzpatrick of counsel), for appellant. Berkowitz & Weitz, P.C., New York (Andrew D. Weitz of counsel), for respondent.
Wood Smith Henning & Berman LLP, New York (Kevin T. Fitzpatrick of counsel), for appellant.
Berkowitz & Weitz, P.C., New York (Andrew D. Weitz of counsel), for respondent.
Friedman, J.P., Sweeny, Webber, Kahn, Oing, JJ.
Order, Supreme Court, New York County (Erika M. Edwards, J.), entered September 11, 2017, which granted plaintiff's motion for summary judgment as to liability on his negligence claim as against defendantAlliedBarton Security Services LLC, unanimously affirmed, without costs.
Plaintiff established prima facie that defendant created or had notice of the dangerous condition on which he tripped and fell through his own testimony, the testimony of an employee eyewitness and a nonparty eyewitness, and defendant's own internal reports and incident reviews showing that plaintiff tripped and fell on a yellow plastic chain lying on the ground that defendant controlled but had left unattended (see Uhlich v. Canada Dry Bottling Co. of N.Y., 305 A.D.2d 107, 758 N.Y.S.2d 650 [1st Dept. 2003] ).
In opposition, defendant failed to raise a triable issue of fact. As the motion court found, defendant's argument that plaintiff was unable to identify the cause of his fall is unsupported by the record. The motion court also correctly rejected as speculative defendant's argument that black ice may have contributed to the accident. Moreover, plaintiff was not required to demonstrate his own freedom from comparative negligence to be entitled to summary judgment as to defendant's liability (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366, 2018 N.Y. Slip Op. 02287, 2018 WL 1595658 [2018] ). For this reason, we also reject defendant's argument that the chain on which plaintiff tripped was open and obvious, since that issue too is relevant to comparative fault and does not preclude summary resolution of the issue of defendant's liability (see Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 72–74, 773 N.Y.S.2d 38 [1st Dept. 2004] ).
We have considered defendant's remaining contentions and find them unavailing.