Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendants Elizabeth Hilzenrath, Bernard Hilzenrath, and Mark Hilzenrath (hereinafter collectively as defendants or Hilzenraths) filed on June 29, 2018, under motion sequence one, for an order pursuant to CPLR 3212 granting summary judgment in their favor on liability and dismissing plaintiff Karen Hollander's (hereinafter Hollander or plaintiff) complaint in its entirety. Hollander opposes the motion.

Notice of Motion

Affirmation in Support

Exhibits A-G

Affirmation in Opposition

Exhibits A-B

Reply

On November 11, 2016, Hollander commenced an action to recover damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office. On January 16, 2017, the defendants jointly interposed a verified answer. On April 30, 2018, plaintiff filed the note of issue.

The verified complaint and verified bill of particulars allege the following salient facts. On October 31, 2015, Hollander tripped or slipped down the carpeted staircase while descending the stairs (hereinafter the subject staircase) from her apartment located at 2162 East 70th Street, Brooklyn, New York due to the negligence of the defendants. Hollander contends that the defendants created a hazardous condition by providing inadequate lighting in the stairwell and installing an overly thick carpet on the staircase. She further contends that the height to depth ratio of the staircase did not comply with the New York City Building Code § 27-375 (e) and other industry standards.

Defendants' motion papers consist of a notice of motion, an affirmation of counsel and seven annexed exhibits labeled A through G. Exhibit A is a copy of plaintiff's summons and verified complaint. Exhibit B is a copy of defendants' verified answer. Exhibit C includes the following documents: a copy of defendants' demand for a verified bill of particulars, plaintiff's verified bill of particulars and plaintiff's first supplemental verified bill of particulars. Exhibit D is a signed copy of plaintiff's deposition transcript dated January 18, 2018. Exhibit E is a signed copy of defendant Elizabeth Hilzenrath's deposition transcript dated March 15, 2018. Exhibit F includes copies of three colored photos described as photos of the subject staircase used at plaintiff's deposition identified as defendant's exhibits A, B, and C. Exhibit G is the affidavit of Michael C. Simon, a professional engineer retained as an expert by the defendants.

Plaintiff's opposition consists of an affirmation of counsel and two annexed exhibits labeled A to B. Exhibit A includes the affidavit and curriculum vitae of Fred De Filippis, a professional engineer retained as an expert by the plaintiff. Exhibit B includes two color photos described as the subject stairs and surrounding areas.

Defendants have submitted an affirmation of counsel in reply.

The defendant contends that the subject staircase did not pose a hazardous condition, that the defect, if any, was trivial and not actionable, and that the alleged condition did not proximately cause plaintiff's accident.

It is well established that summary judgement may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgement as a matter of law by presenting evidence in admissible form demonstrating the [*2]absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgement motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]).

For defendant to prevail on a summary judgment motion in a premises liability action, defendant must establish as a matter of law that it maintained the property in question in a reasonably safe condition and that it neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof.

A defendant moving for summary judgment on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses; only then does the burden shift to the plaintiff to establish an issue of fact (Stanley v New York City Hous. Auth., 161 AD3d 1128 [2nd Dept 2017] citing Hutchinson v Sheridan Hill House Corp. 26 NY3d 66, 79 [2015]). The Court of Appeals has recognized that even a physically small defect may be actionable, such as where there is a jagged edge, a rough, irregular surface, the presence of other defects in the vicinity, poor lighting, or if the defect is located where people are naturally distracted from looking down at their feet (Hutchinson, 26 NY3d at 78). Attention to the specific circumstances is always required, and undue or exclusive focus on whether a defect is a trap or snare is not appropriate (Id. at 79).

A defendant property owner has a duty to maintain its premises 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 (Lee v Acevedo,152 AD3d 577 [2nd Dept 2017]). However, it does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous (see Cupo v Karfunkel, 1 AD3d 48 , 51 [2nd Dept 2003]). Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury (see Pellegrino v Trapasso, 114 AD3d 917, 918 [2nd Dept 2014]). Similarly, whether a condition is open and obvious depends on the circumstances of the case, and something that ordinarily would be readily observable may be obscured by inadequate illumination (see Twersky v Incorporated. Vil. of Great Neck, 127 AD3d 739, 740 [2nd Dept 2015]).

In support of its motion, the defendants submitted, among other things, an expert affidavit from Michael C. Simon a professional engineer (hereinafter Simon). Simon has averred, among other things, that he reviewed the deposition transcripts of the plaintiff and of defendant Elizabeth Hilzenrath. He also reviewed the plaintiff's bill of particulars, supplemental bill of particulars, and the expert disclosure report of Fred DeFilippis, PE (hereinafter DeFilippis) dated November 4, 2016 (hereinafter the November report). Furthermore, Simon averred that he inspected the subject staircase on May 25, 2018.

Although the defendants did not annex the November report which Simon reviewed, by annexing Simon's affidavit, they did include Simon's extensive disagreement with the measurements and findings of DeFilippis that were set forth in the November report. For [*3]example, Simon opined that there was no way to account for the measurement that DeFilippis reportedly took of the subject staircase. He stated that his own measurements were different. He further opined that the measurements that DeFilippis took could only occur if the ruler he used was forced deep into the padding on the lower stair treads while simultaneously failing to apply that same force to the straight edge used to identify the upper tread level. He speculated that this method of measurement would produce an inaccurate and greater riser height than what actually existed. He further opined that if no straight edge was used by DeFilippis, and the measurements were taken by eye, that too would be suspect, as the angle at which the measurement was taken would affect the reading.

Simon's specific reference to the different measurements and findings of DeFilippis rendered admissible the fact that the measurements taken by the plaintiff's expert and the defendants' expert were different, and hence their findings as to the dangerousness of the staircase was also different. The defendants' potential objections to the admission of the findings and the measurements of the staircase by the plaintiff's expert were waived (see Cruz v Finney, 148 AD3d 772 [2nd Dept 2017]).

Inasmuch as the measurements of the subject staircase is in dispute, the defendants have failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous (Twersky, 127 AD3d at 739—740). Consequently, they have also failed to show that the defect, if any, was trivial and not actionable (Id. at 740).

Generally, it is for the trier of fact to determine the issue of proximate cause (see Kalland v Hungry Harbor Assoc., LLC, 84 AD3d 889, 889 [2nd Dept 2011]). However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts (Id.). Additionally, there may be more than one proximate cause of a plaintiff's accident and injuries (Id.). To sustain the burden of proving a prima facie case of proximate cause, the plaintiff in a negligence action must generally show that the defendant's negligence was a substantial cause of the events which produced the injury (see Lapidus v State of New York, 57 AD3d 83, 94 [2nd Dept 2008], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). A defendant seeking summary judgment based on lack of proximate causation must make a prima facie showing that the alleged dangerous condition was not a substantial factor in causing the plaintiff's accident.

For the reasons previously stated, among others, the defendants have failed to establish that the alleged dangerous condition of the subject staircase was not a substantial factor in causing plaintiff's accident.

The joint motion of Elizabeth Hilzenrath, Bernard Hilzenrath, and Mark Hilzenrath for an order granting summary judgment in their favor on liability and dismissing the complaint of Karen Hollander is denied.

The foregoing constitutes the decision and order of this Court.