Opinion
CA 02-02634
October 2, 2003.
Appeal from an order of Supreme Court, Erie County (Mintz, J.), entered July 2, 2002, which granted defendant's motion for summary judgment dismissing the complaint.
MATUSICK, SPADAFORA VERRASTRO, BUFFALO (RICHARD E. UPDEGROVE OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CHELUS, HERDZIK, SPEYER, MONTE PAJAK, P.C., BUFFALO (THOMAS J. SPEYER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum:
Plaintiff commenced this action seeking damages for personal injuries she sustained when she fell from a step in a building owned by defendant. Plaintiff alleged that the construction of the single step leading from the computer room to the hallway where she fell constituted a dangerous condition and that the lighting in the computer room and hallway was inadequate. According to the deposition testimony of plaintiff, she took a step with her left foot "and there was no floor there."
Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint. We agree with plaintiff that defendant failed to meet its initial burden of establishing that the step was not inherently dangerous as a matter of law ( see Eisenhart v The Marketplace, 176 A.D.2d 1220; see generally Trincere v. County of Suffolk, 90 N.Y.2d 976, 977; Holl v. Holl, 270 A.D.2d 864) or that the alleged defect was trivial as a matter of law ( see Holl, 270 A.D.2d 864; cf. Trincere, 90 N.Y.2d at 977-978). Defendant also failed to establish that the alleged defect was not a proximate cause of plaintiff's injuries as a matter of law. Defendant contends that plaintiff fell solely due to her own negligence inasmuch as she was looking straight ahead rather than at the ground when she left the computer room. In addition, defendant contends that plaintiff had been through the same doorway when she entered the computer room and therefore should have remembered to step down upon leaving the computer room. Defendant failed to establish that plaintiff's fall was unrelated to the alleged defect ( cf. Geloso v. Castle Enters., 266 A.D.2d 849) and, while plaintiff may have been comparatively negligent in failing to observe the step or in failing to remember that the step was there, any such comparative negligence would not serve to "negate the liability of the * * * landowner[,] who has a duty to keep the premises safe" ( Vereerstraeten v. Cook, 266 A.D.2d 901, 901).