Opinion
16520 Index No. 30914/18E Case No. 2021-03840
10-25-2022
Juanita YOUNG, Plaintiff–Respondent, v. 1530 ROSEDALE PARTNERS, LLC, Defendant–Appellant, Daniel Yadegar, et al., Defendants. [And a Third-Party Actions]
Stonberg Moran, LLP, New York (Rebecca Miller of counsel), for appellant. Burns & Harris, New York (Mariel Crippen of counsel), for respondent.
Stonberg Moran, LLP, New York (Rebecca Miller of counsel), for appellant.
Burns & Harris, New York (Mariel Crippen of counsel), for respondent.
Webber, J.P., Singh, Moulton, Gonza´lez, Pitt, JJ.
Order, Supreme Court, Bronx County (Adrian Armstrong, J.), entered on or about June 24, 2021, which, to the extent appealed from, granted plaintiff's motion for summary judgment on liability against defendant 1530 Rosedale Partners, LLC, unanimously affirmed, without costs.
Plaintiff established that Rosedale had constructive notice of the broken stairway handrail that caused her injury, as the deposition testimony from nonparty witnesses shows that the bottom of the handrail broke off about a few weeks before plaintiff fell and was never repaired (see Seleman v. Barnes & Noble, Inc., 114 A.D.3d 566, 567, 981 N.Y.S.2d 52 [1st Dept. 2014] ; Corrales v. Reckson Assoc. Realty Corp., 55 A.D.3d 469, 470–471, 868 N.Y.S.2d 2 [1st Dept. 2008] ). Moreover, plaintiff's deposition testimony that she herself did not realize the handrail was broken when she went up the stairway the day before the accident does not establish that Rosedale lacked notice of the hazardous condition (see Covington v. New York City Hous. Auth., 135 A.D.3d 665, 666, 24 N.Y.S.3d 273 [1st Dept. 2016] ). Furthermore, through her submission of deposition testimony by defendant Atin Batra, Rosedale's managing member, and third-party defendant Richard Delgado, Jr., the handyman at the premises, plaintiff established that Rosedale violated its duty to maintain the handrail in good repair, as Batra and Delgado both testified that Rosedale conducted no regular inspection of the handrail and that the stairway had not been inspected for about a year before the accident (see Multiple Dwelling Law § 78[1] ; Showverer v. Allerton Assoc., 306 A.D.2d 144, 144, 761 N.Y.S.2d 44 [1st Dept. 2003] ).
In opposition, Rosedale failed to raise a triable issue of fact as to whether it lacked constructive notice that the handrail was broken. Although, Batra and Delgado testified that about eight months before plaintiff's accident, she complained that the handrail was loose and Delgado repaired it the next day, they also could not recall precisely when the repair was made. Nor did they know when the handrail was last inspected before plaintiff fell, or the handrail's condition at the time of the accident (see Moore v. 1772 Weeks Ave. Hous. Dev. Fund Corp., 123 A.D.3d 456, 456, 998 N.Y.S.2d 339 [1st Dept. 2014] ; Cruz v. City of New York, 81 A.D.3d 505, 505, 917 N.Y.S.2d 158 [1st Dept. 2011] ). Moreover, contrary to Rosedale's contention, the unsigned work order failed to establish that the handrail was repaired before the accident. Although Batra testified that he always gave Delgado a work order after the work was completed, Rosedale submitted no canceled check in its opposition papers even though Batra testified that he paid Delgado for repair work only by check.
We reject Rosedale's argument that summary judgment is precluded because plaintiff used the stairs twice per day and knew that the handrail was broken at least eight months before she fell. That plaintiff was aware that the handrail was loose before the accident does not establish that she knew the bottom of handrail had broken off. In any event, even assuming plaintiff knew the handrail was broken, that would not negate a duty to warn of a hazard (see Farrugia v. 1440 Broadway Assoc., 163 A.D.3d 452, 454–455, 82 N.Y.S.3d 1 [1st Dept. 2018], appeal withdrawn 32 N.Y.3d 1168, 97 N.Y.S.3d 642, 121 N.E.3d 270 [2019] ). At most, plaintiff's knowledge of the hazard would go toward proving her comparative negligence, which would not prevent a judgment in her favor on liability (see Rodriguez v. City of New York, 31 N.Y.3d 312, 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ; Socorro v. New York Presbyt. Weill Cornell Med. Ctr., 160 A.D.3d 544, 545, 74 N.Y.S.3d 547 [1st Dept. 2018] ).