Mister v. Mister

Full title: ROSE M. MISTER, Plaintiff, v. SUSAN MISTER, Defendant. RJIN No. 2018-0026-M

Court: Supreme Court, Chenango County

Date published: Aug 13, 2019

2019 N.Y. Slip Op. 34437 (N.Y. Sup. Ct. 2019)

Opinion

Index 2018-5023

08-13-2019

ROSE M. MISTER, Plaintiff, v. SUSAN MISTER, Defendant. RJIN No. 2018-0026-M

Keith A. O'Hara, Attorney for Plaintiff Coughlin & Gerhart, LLP Karen J. Krogman Daum, Attorney for Defendant Smith, Sovik, Kendrick & Sugnet, P.C.

Honorable John F. Lambert, Acting Justice

Unpublished Opinion

Keith A. O'Hara, Attorney for Plaintiff Coughlin & Gerhart, LLP

Karen J. Krogman Daum, Attorney for Defendant Smith, Sovik, Kendrick & Sugnet, P.C.

DECISION & ORDER

Honorable John F. Lambert, Acting Justice

On July 29^th, 2019 the defendant filed a motion for summary judgment pursuant to CPLR §3312. In support of the motion, the Court is in receipt of an affirmation and memorandum of law by attorney Karen J. Krogman Daum, dated June 25^th, 2019, together with exhibits; an affidavit of Daniel F. Leary, RA, CSI, NCARB, dated June 24^th, 2019, with exhibits; as well as a reply affirmation dated July 26^th, 2019. hi opposition, the Court is in receipt of an affidavit and a a memorandum of law by attorney Keith A. O'Hara dated July 18^th, 2019, an affidavit by architect Frederick G. Bremer, dated July 18^th, 2019; an affidavit by Robert B. Mister dated July 16^th, 2019 with exhibits; and an additional unsigned statement by Denise E. Lewis.

This matter arises from a slip and fall incident at 19 Bates Terrace, Sidney, New York on October 11, 2015. The incident occurred at property owned by defendant. Plaintiff fell while she was descending the steps attached to a porch on the house. It is alleged that she sustained serious injuries as a result of the fall. Before the slip and fall at issue, other individuals, including the defendant, had fallen on the steps. Defendant occasionally warned people that the steps were slippery as did Robert B. Mister, the defendant's father, who had previously notified the defendant that the steps were slippery. At the request of the defendant, her father applied slip resistant material strips to the steps, which he did prior to the slip and fall incident at issue here.

"A landowner meets its prima facie burden of establishing that it fulfilled its duty to maintain its property in a reasonably safe condition by showing that it did not create a dangerous or defective condition and did not have actual or constructive notice of such a condition. It is settled that defendant, as the proponent of the motion, was required to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact. Since defendant, as a landowner, is obligated to maintain its property in a reasonably safe condition, it had to establish that it neither created a dangerous or defective condition nor had actual or constructive notice thereof (internal quotation marks and citations omitted)" Jones-Barnes v. Congregation Agudat Achim, 12 A.D.3d 875 (3^rd Dept. 2004). To that end, the defendant asserts that she has demonstrated that the pine needles and moisture that the plaintiff slipped on were an open and obvious condition which does not amount to a dangerous condition as a matter of law. Additionally, defendant asserts that there is no issue of fact as to whether the handrail was a proximate cause of plaintiff s fall, because there is no evidence upon which a logical inference could be made to determine any alleged code violation of the hand rail (or steps in general) was a proximate cause of plaintiff s fall.

"Although the absence of direct evidence of causation would not necessarily compel a grant of summary judgment in favor of defendant, as proximate cause maybe inferred from the facts and circumstances underlying the injury, the evidence must be sufficient to permit a finding based on logical inferences from the record and not upon speculation alone (internal quotation marks, brackets and citations omitted)" Bloomer v. Empire Forklift, Inc., 46 A.D.3d 1324 (3^rd Dept. 2007). Plaintiff may show facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred (see Flahive v Union Coll., 99 A.D.3d 1151 [3^rd Dept. 2012]). Contrary to the assertions of the defendant, plaintiff and the plaintiffs witnesses all articulate that the steps were slippery. Slipperiness as alleged by the plaintiff is a condition that is substantially the same as many of the prior falls that occured upon the steps and on those occasions the individuals slipped while descending the steps. This is the case here as the defendant occasionally warned people about the slippery condition and took steps to remediate the condition. Also the defendant asserted in her deposition that she had slipped on the steps on more than one occasion and as a result, she believed them to be dangerous. The defendant testified that she was aware of eight (8) people who had slipped on the involved steps. She noted that at least one the people who had fallen had suffered serious injury in addition to her mother.

Viewing this evidence in the light most favorable to the nonmovant (see Kropp v Corning, Inc., 69 A.D.3d 1211 [3^rd Dept. 2010]), and taking into consideration that what constitutes reasonable care under the circumstances is ordinarily a question for the finder of fact (see Akins v. Glens Falls City School Dist., 53 N.Y.2d 325 [1981]), the condition of the steps and reasonable care are a factual one for the finder of fact to determine. "Essentially, what is negligence in a given case is a question of fact. Each case depends upon its own peculiar circumstances. Decisions in other actions in which damages are sought for personal injuries furnish no criterion or guide for determination of what is or is not negligence in a particular case involving its own peculiar facts and circumstances. Under circumstances existing in one case the ordinary care required might not be the same as that required under other circumstances. Negligence arises from breach of duty and is relative to time, place and circumstance" La Rocco v. State, 8 A.D.2d 644 3 ^rd Dept. 1959). Although the defendant's attorney asserts that the cause for the slip and fall was pine needles and moisture, this Court determines upon this record, that there is a factual question as to whether or not the steps may not have been properly maintained. The defendant acknowledged that she felt the steps were dangerous because they are slippery. If the slippery condition existed for an extended time, such that defendant could have discovered and remedied it, defendant had constructive notice of a defective condition (see McNally v Kiki, Inc., 92 A.D.3d 1105 [3^rd Dept. 2012]). The finder of fact could reasonably find the steps posed a dangerous condition and that defendant had actual and constructive notice of their condition. This is an issue of fact for the finder of fact to determine and as such summary judgment is not appropriate. Additionally, the finder of fact could find that the condition of the stairway handrail may have (or may not have) contributed to the dangerous condition.

The defendant's registered architect, Daniel F. Leary, asserts that the porch steps at issue comply with the normal standards and were and are still in compliance with the Residential Code. It is his opinion the porch steps are in generally fair to good condition, and no significant deficiencies are noted. The plaintiffs registered architect Frederick G. Bremer asserts that based on his investigation and review of the case documents, it is his professional opinion within a reasonable degree of architectural and technical certainty that the riser heights, tread depths, tread surfaces, and the handrail were not as required by the Residential Code of Nov York State, the Property Maintenance Code of Nov York State, Sections 302.3 and 305.4, and nationally recognized industry standards. Accordingly there is a fact issue to be determined regarding the safety and suitability of the constructed steps and handrail for their particular use.

Under the record presented, and applying the above standards, it is

ORDERED the defendants motion pursuant to CPLR § 3312, for summary judgment dismissing plaintiffs verified complaint in its entirety with prejudice is denied.

This is the decision and order of the Court.