Gubitosi v Pulte Homes of N.Y., LLC
2011 NY Slip Op 01002 [81 AD3d 690]
February 8, 2011)
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 30, 2011


Mary Gubitosi, Respondent,
v
Pulte Homes of New York, LLC, Appellant.

[*1]

Bonner Kiernan Trebach & Crociata, LLP, New York, N.Y. (Ewan M. Clark of counsel), for appellant. Katz & Kreinces, LLP, Mineola, N.Y. (Lawrence K. Katz of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), entered March 25, 2010, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly injured herself while taking a tour of a house under construction that was to be purchased by her daughter. She subsequently commenced this action against the seller, alleging, inter alia, that the defendant was negligent in guiding the plaintiff though the partially constructed premises without warning her of a step between the hallway of the first floor and the garage, and in failing to mark the step by a sign, change in color, or other device sufficient to alert her to the change in elevation.

The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint. The defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Roros v Oliva, 54 AD3d 398, 399-400 [2008]; Scher v Stropoli, 7 AD3d 777 [2004]; Chafoulias v 240 E. 55th St. Tenants Corp., 141 AD2d 207, 208 [1988]). The defendant's failure to make such a showing required the denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Prudenti, P.J., Rivera, Lott and Miller, JJ., concur.