Opinion
2020–04282 Index No. 511246/17
12-28-2022
Isabel FRANCISCO, respondent, v. Guido PULLA, appellant.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum ], of counsel), for appellant. Raphaelson & Levine Law Firm, P.C., New York, NY (Corey T. Flick of counsel), for respondent.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum ], of counsel), for appellant.
Raphaelson & Levine Law Firm, P.C., New York, NY (Corey T. Flick of counsel), for respondent.
COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, PAUL WOOTEN, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated March 25, 2020. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
In 2017, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in June 2016 when she slipped and fell at a residential building owned by the defendant. At her deposition, the plaintiff testified that, on the day at issue, she was descending a staircase between the second and third floors and slipped on an old, worn patch of carpet on the fourth step. The defendant subsequently moved for summary judgment on the grounds that there was no defect on the steps, that any such defect was trivial, and therefore not actionable, and, in any event, that he lacked actual or constructive notice of same. In an order dated March 25, 2020, the Supreme Court denied the motion. The defendant appeals.
"Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the circumstances of each case and is generally a question of fact for the jury" ( Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 619, 916 N.Y.S.2d 137 ). Here, the defendant failed to establish, prima facie, that the condition complained of was not dangerous or defective, or that it was trivial as a matter of law (see Coriat v. Miller, 164 A.D.3d 1207, 1208, 83 N.Y.S.3d 217 ). In support of his motion, the defendant submitted, inter alia, his deposition testimony and photographs of the staircase at issue. "[I]t is impossible to ascertain from the photographs submitted in support of the motion whether the alleged defective condition was trivial as a matter of law" ( Padarat v. New York City Tr. Auth., 137 A.D.3d 1095, 1097, 27 N.Y.S.3d 686 ; see Mscichowski v. 601 BBA, LLC, 134 A.D.3d 996, 22 N.Y.S.3d 506 ). Moreover, the defendant's deposition testimony also failed to establish that the condition complained of was not defective or dangerous, or that it was trivial as a matter of law. We also note that on appeal the defendant does not argue that he lacked actual or constructive notice of the condition.
Since the defendant failed to meet his prima facie burden, the Supreme Court properly denied his motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiff's opposition (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 ; San Antonio v. 340 Ridge Tenants Corp., 204 A.D.3d 713,716, 166 N.Y.S.3d 256 ).
The defendant's remaining contention is improperly raised for the first time on appeal (see Wells Fargo Bank v. Islam, 174 A.D.3d 670, 671–672, 106 N.Y.S.3d 76 ).
DUFFY, J.P., CONNOLLY, WOOTEN and TAYLOR, JJ., concur.