In this personal injury action defendant/third-party plaintiff Delia R. Torres ("Torres") moves, pursuant to CPLR §3212, for an Order granting her summary judgment and dismissing the complaint as against her.

The premises are owned by defendant, Torres, and consist of a ground floor commercial store and a residential apartment upstairs where Torres and her daughter, Ilsa Torres, resided. The premises have a pair of cellar doors which are recessed into the sidewall which opened outward and lead to the basement. The cellar doors had a padlock that was used to lock these cellar doors from the outside. On the date of this accident the store was leased to Javier Adorno (Adorno) who was renovating this commercial space in order to open a 99 Cents Store.

Ilsa Torres testified at her deposition that on the morning of this accident she gave her key to the cellar doors padlock to Adorno. Adorno had told her that his plumbers working on his store renovation needed access to the basement.

At her deposition Ilsa Torres testified as follows:

"Q. Did you ask anybody if they saw what happened?

A. Somebody said she fell down. Oh, the workers said

she fell down.

"Q. What workers? [*2]

A. Because they opened the door. That's what it was,

because they closed the doors when they went

downstairs, and when they came up. They opened

the door, and that's how she fell down.

"Q. Did you get the name of the workers?

A. No, it was the company that was working

for the 99 Cents Store. They were plumbers.

"Q. Specifically, what did he tell you?

A. He told me he was working downstairs and

he had the doors locked. He opened the door,

and that's when the girl fell.

"Q. So, who unlocked the door for him?

A. He did. He did himself. He was working

for the 99 Cents Store. He went down.

he had closed the door. When he came

up, I guess the girl was walking by and she fell"

Torres did not supervise or control the renovation of the store and

was upstairs in her apartment at the time of the accident.

The plaintiff argues in her opposition to defendant's motion for summary judgment that the "central issue of material fact herein" is the defective condition of the cellar door "because it opened when the plaintiff, a pedestrian, walked on it".

Discussion

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v Bell, 222 AD2d

547 [2nd Dept. 1995]).

A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence that establishes the absence of a material issue of fact and that the cause of action has no merit. (CPLR 3212[b]; GTF Marketing, Inc. V. Colonial Aluminum, Sales, Inc., [*3]

66 NY2d 965, 968 [1985]). Once the defendant has satisfied her obligation, the burden shifts and the plaintiff in opposing the motion must now demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 560, [1980]). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD.2d 728, 729 [2d Dept 1995]).

The facts in this case are remarkably similar to those in Fobbs v Rahimzada (39 AD3d 811 [2d Dept 2007]). In Fobbs, "[t]he plaintiff, while walking on the public sidewalk in front of the premises owned by the defendant ... allegedly tripped and fell and was injured when the cellar doors located in the sidewalk began to open."

The Appellate Division, Second Department, ruled on these facts that "[t]he The defendant established his prima facie entitlement to judgment as a matter of law (citation omitted). He established that the plaintiff's fall was the result of an unidentified person, presumably the agent and/or employee of a tenant in possession, opening the cellar doors from inside, and was not caused by any defect or dangerous condition concerning the cellar doors. In opposition, the plaintiff failed to raise a triable issue of fact to substantiate her conclusory allegation that the cellar doors were somehow defective or constituted a dangerous condition"(citation omitted).

In the instant case, the defendant's argument for granting her summary judgment is even stronger and she has established her prima facie entitlement to judgment as a matter of law. The defendant has met her burden by establishing that the plaintiff's fall was the result of an unidentified worker, presumably the employee of the plumbing company hired by the store tenant, opening the cellar door from inside, and was not caused by any defect or dangerous condition of the cellar doors, as claimed by plaintiff.

Based on the foregoing, the defendant/third-party plaintiff Delia R. Torres' motion for summary judgment is granted and the complaint against her is dismissed.

This constitutes the decision and order of the Court.

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J.S.C.