Opinion
Index No. 501058/2020 Motion Sequence Nos. 1 2
09-20-2021
CLAUDETTE SCALA, Plaintiff, v. ANITA SCALA, Defendant.
Unpublished Opinion
To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION AND ORDER
HON. GINA C. CAPONE, J.S.C.
The following papers, numbered 1 - 18, were read and considered on the Plaintiff's motion pursuant to CPLR § 3212 for summary judgment on the issue of liability and on the Defendant's motion pursuant to CPLR § 3212 for summary judgment dismissing the complaint.
PAPERS NUMBERED
Notice of Motion/ Attorney Affirmation in Support of Motion/ 1 - 7
Statement of Material Facts/ Exhibits 1-4
Notice of Cross-Motion/Attorney Affirmation in Opposition and 8 - 16 in Support of Defendant's Cross-Motion/Statement of Material
Facts/ Memorandum of Law in Opposition/ Exhibits A - E
Affirmation in Opposition to Cross-Motion and in Reply to 17 - 18 Opposition/ Exhibit 1
This action arises from a "trip-and-fall" that occurred on November 8, 2019, at Defendant Anita Scala's residence. On that day, Plaintiff and her husband Mr. Anthony Scala visited Defendant's residence. Defendant, who is the mother-in-law of Plaintiff, had purchased a new pair of shoes and told Plaintiff to go view them. The new shoes were placed on top of a fireplace in the living room. Plaintiff began to walk toward the shoes and tripped on the shoe box located somewhere at the side of Defendant's living room chair near the fireplace and coffee table. Upon stepping on the shoe box, Plaintiff fell forward onto the coffee table and allegedly injured herself as a result.
This action was commenced by Plaintiff on August 7, 2020, by filing a Summons and Verified Complaint. Plaintiff alleges, inter alia, that Defendant was negligent in failing to maintain the premises in good and safe condition and negligent in failing to warn Plaintiff of the potential danger that the shoe box posed. Defendant responded by Verified Answer on September 2, 2020, and denied the allegations. Plaintiff now moves for summary judgment on the issue of liability. Defendant has opposed the motion and cross-moves for summary judgment and dismissal of the complaint.
"On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). "Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact" (Vega v Restani Constr. Corp., 18 N.Y.3d at 503). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d at 324).
"A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Romano v Omega Moulding Co. Inc., 57 A.D.3d 873, 874 [2d Dept 2008]). "In order to prevail in a trip-and-fall case, the "plaintiff must demonstrate that the defendant had actual or constructive notice of the allegedly defective condition that caused the fall, or created that condition" (Teplin v Bonwit Inn, 64 A.D.3d 642, 642-43 [2d Dept 2009]). "[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" (Haxhia v Varanelli, 170 A.D.3d 679, 681 [2d Dept 2019]).
"There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous" (Hayward v Zoria Hous., LLC, 187 A.D.3d 997, 998 [2d Dept 2020]; citing Cupo v Karfunkel, 1 A.D.3d 48, 51 [2d Dept 2003] [emphasis added]). "The issue of whether a dangerous condition is open and obvious is fact specific, and thus, usually a question for the jury" (Ruiz v Hart Elm Corp., 44 A.D.3d 842, 843 [2d Dept 2007]). "[W]hether a condition is open and obvious cannot be divorced from the surrounding circumstances, and a condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured, for example, by other objects or by inadequate illumination" (Barone v Risi, 128 A.D.3d 874, 875-76 [2d Dept 2015]).
Plaintiff's Motion for Summary Judgment on the Issue of Liability
Plaintiff has failed to meet her prima facie burden on the issue of liability. In support of her motion for summary judgment, Plaintiff, inter alia, submitted the deposition testimony of herself and Defendant. The conflicting testimony makes it clear that at this point in time, on these submissions, the location and positioning of the shoe box cannot be identified. The visibility of the shoe box also cannot be ascertained given that Plaintiff testified that she did not look down when she was walking and both she and the Defendant testified that the shoe box was out of a person's view as they turned to walk between the chair and the fireplace. The Defendant also testified that she does not remember or know if the shoe box was there for somebody to see had they looked down. By submitting on her motion conflicting testimony, the Plaintiff cannot eliminate all triable issues of fact. Thus, material issues of fact exist as to whether Defendant's placement of the shoe box was reasonable and whether it constituted a dangerous condition upon her premises. These kind of factual determinations are clearly for the finders of fact to make. Plaintiff therefore cannot satisfy her prima facie burden for summary judgment on the issue of liability.
Defendant's Motion for Summary Judgment on the Issue of Liability
Defendant also cannot meet her prima facie burden of establishing her entitlement to judgment as a matter of law. In support of her cross-motion, Defendant, inter alia, also submitted the deposition testimony of herself and Plaintiff. As discussed above, the deposition testimony of the Plaintiff and Defendant reveals that issues of fact exist as to the exact location and positioning of the shoe box prior to Plaintiff's fall. Thus, issues of fact remain as to whether the placement of the shoe box was open and obvious and not inherently dangerous (see McLachlan v R &S, 52 A.D.3d 662 [2d Dept 2008] [judgment as a matter of law in favor of Defendant is inappropriate where a boy tripped over a small cardboard box at Defendant's store]). To the extent it has been argued that the fall occurred as a result of Plaintiff's failure to use reasonable care in looking out for the shoe box, "the fact that a defect may be open and obvious does not negate a landowner's duty to maintain its premises in a reasonably safe condition, but may raise an issue of fact as to the plaintiff's comparative negligence" (Ruiz v Hart Elm Corp., 44 A.D.3d at 843). Therefore, Defendant cannot meet her prima facie burden for summary judgment on the issue of liability.
Accordingly, it is hereby
ORDERED that the Plaintiff's summary judgment motion on the issue of liability is denied; and it is further
ORDERED that the Defendant's cross motion for summary judgment on the issue of liability denied; and it is further
ORDERED that all parties are directed to appear before the Court for a virtual status conference on November 9, 2021 at 11:00 a.m. The Microsoft Teams link will be sent to all emails of record on NYSCEF.
The foregoing constitutes the Order of the Court.