Opinion
05-17-2017
Semen GOROKHOVSKIY, appellant, v. NYU HOSPITALS CENTER, respondent.
Amabile & Erman, P.C., Staten Island, NY (Anthony A. Lenza, Jr., and Nicholas Loiacono of counsel), for appellant. Heidell, Pittoni, Murphy & Bach, LLP, New York, NY (Daniel S. Ratner of counsel), for respondent.
Amabile & Erman, P.C., Staten Island, NY (Anthony A. Lenza, Jr., and Nicholas Loiacono of counsel), for appellant.
Heidell, Pittoni, Murphy & Bach, LLP, New York, NY (Daniel S. Ratner of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Silber, J.), dated April 21, 2016, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff, in his capacity as a delivery person for nonparty FDR Services Corporation, allegedly was injured while trying to push a four-wheeled bin of floor mats up a ramp in the loading dock area of NYU Langone Medical Center in Manhattan. The plaintiff commenced this action to recover damages for personal injuries against the defendant, the alleged owner of the premises at the time of the subject accident. The plaintiff alleged, inter alia, that the ramp was improperly sloped—i.e., it was too steep, high, and long, and "unnecessarily exposed [him] to forces greater and longer in duration than what are customary for ramps used for deliveries." The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion. We reverse.
In a premises liability case, a defendant property owner, or a party in possession or control of real property, who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence (see Kyte v. Mid–Hudson Wendico, 131 A.D.3d 452, 453, 15 N.Y.S.3d 147 ; Pampalone v. FBE Van Dam, LLC, 123 A.D.3d 988, 1 N.Y.S.3d 155 ; Dhu v. New York City Hous. Auth., 119 A.D.3d 728, 989 N.Y.S.2d 342 ; Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 898, 975 N.Y.S.2d 689 ; Bravo v. 564 Seneca Ave. Corp., 83 A.D.3d 633, 634, 922 N.Y.S.2d 88 ; see also Monastiriotis v. Monastiriotis, 141 A.D.3d 510, 35 N.Y.S.3d 265 ). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Nagin v. K.E.M. Enters., Inc., 111 A.D.3d 901, 975 N.Y.S.2d 753 ).
Here, the defendant failed to demonstrate, prima facie, that the subject ramp was compliant with the 2008 New York City Building Code (Administrative Code of City of N.Y. tit. 28, ch. 7) §§ BC 1010.2 and 1010.4, and was not a dangerous condition on the date of the subject accident. Furthermore, the defendant failed to demonstrate, prima facie, that it did not have notice of the alleged condition, or that the alleged condition was open and obvious and not inherently dangerous. Since the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law, we need not consider the plaintiff's opposition papers (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 ). Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.