Opinion
Index No. 520555/2018 Cal. No. 10
02-08-2024
BOHDAN HETSKO, Plaintiff, v. TEED L.P., Defendant.
Unpublished Opinion
PRESENT: HON. WAVNY TOUSSAINT Justice.
DECISION AND ORDER
HON. WAVNY TOUSSAINT, Justice.
The following papers numbered 1 to read herein Papers Numbered
Notice of Motion/Order to Show Cause/ and Affidavits (Affirmations) Annexed 32-40
Cross Motion and Affidavits (Affirmation) Annexed Answers/Opposing Affidavits (Affirmations) 45-54
Reply Affidavits (Affirmations) 55
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers in this personal injury action, defendant moves (Seq. 02) for an order, pursuant to CPLR §3212, granting summary judgment dismissing plaintiffs complaint on the basis plaintiff cannot identify the cause of the subject accident. Plaintiff opposes.
On June 28, 2018, at approximately 9:00 p.m., the injured plaintiff allegedly I' slipped over a stairwell handrail at the premises located at 202 Ocean Parkway, Brooklyn, NY, falling approximately two flights before landing on the lobby floor below. Plaintiff alleges the stairwell handrail was freshly-painted and still wet at the time of the accident. The various responding emergency unit and hospital reports all make reference to plaintiffs suspected alcohol intoxication, which defendant contends was the contributing cause of plaintiffs fall. Plaintiff alleges he was in a comma for approximately a month after the accident, having suffered skull, orbital, C7 fractures, brain hemorrhage and a host of other, serious related injuries. Plaintiff I commenced this action by Summons and Complaint on October 12, 2018. Issue was joined on November 9, 2018.
In support of its motion (Seq. 02), defendant points to plaintiffs deposition I testimony in which plaintiff repeatedly states he doesn't remember the accident "at all". Defendant also submits an unsworn report from its expert, who opines that I plaintiffs intoxication and resulting impairment was the likely contributing cause of the accident. Based on the foregoing, defendant asserts that plaintiffs inability to identify the cause of the accident is fatal to his case, as a judge or jury determining I liability would be forced to make a finding of proximate cause based on pure speculation.
In opposition, plaintiff contends that notwithstanding his inability to state the cause of the accident, the sworn affidavit of eyewitness Andriy Mygalyuk (NYSCEF Doc. No. 48), inter alia, is sufficient to establish the condition of the freshly-painted and still wet stairwell handrail, and its alleged dangerous condition; thereby raising a material issue of fact as to the cause of the accident. Defendant replies arguing, I inter alia, that the proffered eyewitness testimony, in and of itself, is insufficient to raise a material question of fact as to the cause of the accident.
Here, while defendant's reliance on the uncertified, unsworn and unaffirmed report of its expert was lacking in probative value (CPLR §2106; Accardo v Metro-North Railroad, 103 A.D.3d 589, 589 [1st Dep't 2013]; Ellis v Willoughby Walk. Corp. Apartments, 27 A.D.3d 615, 616 [2d Dep't 2006]; Samilenko v Sosa-Donis, 186 A.D.2d 554, 554-555 [2d Dep't 1992]; Winegrad v NYU Medical Center, 64 N.Y.2d 851, 853 [1985]), defendant nonetheless established its prima facie entitlement to judgment as a matter a law by its submission of plaintiffs deposition testimony in i which plaintiff testified he was unable to identify the cause of the fall (Babitskaya v Mosvideofilm Russia, Inc., 98 A.D.3d 639, 639-640 [2d Dep't 2012]; Patrick v Costco Wholesale Corp., 77 A.D.3d 810, 811 [2d Dep't 2010]). In opposition to the motion, however, plaintiff raised a triable issue of fact through, inter alia, the I affidavit of the eyewitness who established that the stairwell handrail was freshly- painted with "oil-based dark brown paint" and still wet at the time of the accident. Further, the eyewitness stated he heard plaintiff exclaim "Oi, its painted", just as he saw plaintiff fall over the stairwell handrail (Mottola v Harvest on Hudson, LLC, 122 A.D.3d 914, 915 [2d Dep't 2014]; Izaguirre v New York City Tr. Auth., 106 A.D.3d 878, 879 [2d Dep't 2013]; Stanojevic v Scotto Bros. Rest. Enters., Inc., 16 A.D.3d 575, 576 [2d Dep't 2005]). Defendant's remaining contentions in reply are without merit.
Accordingly, defendant's motion for summary judgment dismissing the complaint is denied.
This constitutes the decision and order of the Court.