Rangon v Skillman Ave. Corp. (2010 NY Slip Op 50969(U))

Rangon v Skillman Ave. Corp.

2010 NY Slip Op 50969(U) [27 Misc 3d 1230(A)]

Decided on June 3, 2010

Supreme Court, Kings County

Rivera, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through June 4, 2010; it will not be published in the printed Official Reports.

By notice of motion filed on September 3, 2009, under motion sequence number seven, defendants Skillman Avenue Corp. and First Pioneer Properties, Inc. (hereinafter the movants) jointly move pursuant to CPLR § 3212 for an order granting summary judgment in their favor on liability and dismissing the complaint. Plaintiff Line Viviane Rangon opposes the motion.

On October 9, 2007, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated [*2]November 26, 2007, the movants joined issue. By so-ordered stipulation, dated March 17, 2008, plaintiff discontinued the instant action against Lal C. Sani with prejudice. Thus, the movants are the only remaining defendants in this action. On July 8, 2009, plaintiff filed a note of issue.

Plaintiff brings this action for damages to recover for personal injuries allegedly sustained during a fall down a set of stairs located at 33-02 Skillman Avenue, Long Island City, New York. Skillman Avenue Corp. is the owner of the premises. The complaint alleges that First Pioneer Properties, Inc. is the manager of the premises. The complaint alleges forty seven allegations of fact in support of three causes of action. The first cause of action is against Skillman Avenue Corp., the second is against Lal C. Sani and the third is against First Pioneer Properties, Inc. The movants' verified answer asserts eleven affirmative defenses.

The movants' motion papers consist of their attorney's affirmation, a memorandum of law and six annexed exhibits labeled A through F. Exhibit A is plaintiff's verified complaint. Exhibit B is defendants' verified answer. Exhibit C is plaintiff's verified bill of particulars. Exhibit D and E are transcripts of plaintiff's deposition conducted on January 6 and April 1, 2009. Exhibit F is the transcript of the deposition testimony of John Vasapollo on behalf of First Pioneer Properties, Inc., conducted on May 12, 2009.

Plaintiff opposes the motion with an attorney's affirmation and three annexed exhibits labeled A through C. Exhibit A is plaintiff's affidavit sworn to on March 12, 2010. Exhibit B is described as photographs of the stairway on which plaintiff claims to have fallen. The exhibit contains barely discernable black and white copies of photographs. Exhibit C is an affidavit of Robert L. Schwarzberg, a professional engineer, offering an opinion on the condition of the stairway in question.

The movants submit their attorney's affirmation in reply to plaintiff's opposition papers.

A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact (Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the court's 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 party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Napolitano v. Suffolk County Dept. Of Public Works, 65 AD3d 676 [2nd Dept 2009]). Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra; Zuckerman v. City [*3]of New York 49 NY2d 557, 560 [1980]).

In addition, the elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty (See, Lapides v. State, 57 AD3d 83 [2nd Dept. 2008]). "Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident" (See, Grazidei v. Mezeny Inc, 26 Misc 3d 1221(A) [NY Sup. Ct. 2010] citing Constantino v. Webel, 57 AD3d 472 [2nd Dept. 2008]; See also, Manning v. 6638 18th Ave. Realty Corp., 28 AD3d 434 [2nd Dept. 2006]). But there must be "a sufficient nexus between the condition of the property and the circumstances of the plaintiff's fall to establish causation" (See, Cherry v. Daytop Vil. Inc., 41 AD3d 130 [1st Dept. 2007]) which would constitute a reasonable inference of causation and not mere speculation (Constantino v. Webel, 57 AD3d 472 [2nd Dept. 2008]).

The movants do not dispute their ownership, occupancy, or control of the property. Their first argument in support of the motion is that plaintiff is unable to identify the cause of her fall. "In a trip and fall case, a plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation" (See, Grazidei v. Mezeny Inc, 26 Misc 3d 1221(A) [NY Sup. Ct. 2010] citing Antonia v. Srour, 69 AD3d 666 [2nd Dept. 2010]). The defendant in a trip and fall case establishes its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, demonstrating that the plaintiff cannot identify the cause of the fall (See, Grazidei v. Mezeny Inc, 26 Misc 3d 1221(A) [NY Sup. Ct. 2010] citing Scott v. Rochdale Vil. Inc., 65 AD3d 621 [2nd Dept. 2009] and Hunt v. Meyers, 63 AD3d 685 [2nd Dept. 2009]).

"The unknown cause' case-law is most appropriately applicable where a foreign object or substance on the floor or stairs is alleged to have created the danger, or some defect in construction, such as a hole or broken step. It must be applied realistically where there is an alleged flaw in structural design, since a plaintiff cannot be expected to testify with an engineer's eye to the presence of the flaw and its likely effect in bringing about a fall" (Grazidei v. Mezeny Inc, 26 Misc 3d 1221(A) [NY Sup. Ct. 2010]).

The movants submit plaintiff's deposition testimony in an attempt to show that plaintiff is unable to identify the cause of her fall. Specifically, they direct the court's attention to page 87 of the transcript which provides as follows:

Q: Okay. So your claim then is that the crack caused you to fall; is that correct?

Q: Okay. So is it accurate then that the dirt and debris did not cause you to fall?

Q: And when you got to the steps leading from the first floor down to the lobby, did you have an accident in at any point in time when you were proceeding down those steps?

A: I would say the second - the last - the second up - I don't know how to - I know I was - my left foot was on the last step.

Q: You are not stepping on to the lobby. Your foot was stepping on to the last step?

A: That is when I - that is when I fell. That is when I lost my balance, put my foot down, and I fell, and I went flying.

Q: Right. But what I am asking you is what step did you step on to when that happened?

Q: The last one. Okay. And do you recall what foot you stepped with on to that step?

The plaintiff's deposition testimony establishes that she can and did identify the cause of her fall, namely, a crack on the last step of the staircase before the lobby. Consequently, defendants have failed to meet their prima facie burden of demonstrating that plaintiff cannot state what caused her to fall. The fact that plaintiff may not have examined the crack after the accident is of no import to the issue of plaintiff's ability to identify the cause of her fall.

The movants next argument in favor of dismissal of the complaint is that they did not cause or create the dangerous condition, nor did they have actual or constructive notice of the condition. In order to impose liability on a defendant in a trip-and-fall [*5]action, there must be evidence that the defendant either created the alleged dangerous condition or had actual or constructive notice of it (Williams v. SNS Realty of Long Island, Inc., 70 AD3d 1034 [2nd Dept. 2010]). To meet the initial burden on the issue of lack of constructive notice, the movants must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (See, Williams v. SNS Realty of Long Island, Inc., 70 AD3d 1034 [2nd Dept. 2010]). The movants offered no such evidence. Instead they contend that the plaintiff is unable to establish that defendants had notice of the alleged dangerous condition. The movants may not satisfy their burden of making a prima facie showing of entitlement to judgment as a matter of law by simply pointing out gaps in plaintiff's case (See, Chamorro v. 237 West 54th Street, LLC., 25 Misc 3d 1232(A) [NY Sup. Ct. 2009] citing Baines v. G & D Ventures, Inc., 64 AD3d 528 [2nd Dept. 2009]).

The movants third and final argument in support of the motion is that the alleged condition upon which plaintiff fell is trivial and not actionable. The issue of whether a dangerous or defective condition existed depends on the particular facts of each case, and is properly a question of fact for the jury (See, Chamorro v. 237 West 54th Street, LLC., 25 Misc 3d 1232(A) [NY Sup. Ct. 2009] citing Trincere v. County of Suffolk, 90 NY2d 976 [1997]. However, injuries resulting from trivial defects are not actionable (See, Chamorro v. 237 West 54th Street, LLC., 25 Misc 3d 1232(A) [NY Sup. Ct. 2009] citing Hahn v. Wilhelm, 54 AD3d 896 [2nd Dept. 2008]). There is no minimal dimension test or per serule that a defect must be of a certain minimum height or depth in order to be actionable; whether 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 (Trincere v. County of Suffolk, supra). In determining whether a defect is trivial, the court must examine all of the facts presented, including the "width, depth, elevation, irregularity, and appearance of the defect, along with the time, place and circumstances' of the injury" (Trincere v. County of Suffolk, supra, quoting Caldwell v. Village of Is. Park 304 NY 268 [1952]). The movants offered no photographs of the staircase, step or crack in question. Nor did they present any evidence of the width, depth, elevation, irregularity, and appearance of the defect. Instead, they assert that the plaintiff is unable to describe the dimensions of the crack upon which she alleges she fell. Once again the movants impermissibly attempt to shift the burden of proof on their own motion to the plaintiff by pointing to gaps in plaintiff's proof (See, Chamorro v. 237 West 54th Street, LLC., 25 Misc 3d 1232(A) [NY Sup. Ct. 2009] citing Baines v. G & D Ventures, Inc., 64 AD3d 528 [2nd Dept. 2009]). The movants can not make a prima facie showing that the defect is trivial and not actionable by this method.