Palmer v Prima Props., Inc.

Palmer v Prima Props., Inc. 2012 NY Slip Op 09038 Decided on December 26, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 26, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2011-09788
(Index No. 21932/10)

[*1]Christine Palmer, appellant,

v

Prima Properties, Inc., respondent.




Lynn Law Firm, LLP, Syracuse, N.Y. (Patricia A. Lynn-Ford of
counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains,
N.Y. (Tara C. Fappiano of counsel),
for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Walker, J.), entered October 4, 2011, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The defendant failed to establish its prima facie entitlement to judgment as a matter of law, as it did not demonstrate that the stairs in question need not have been equipped with a handrail (see Wajdzik v YMCA of Greater N.Y., 65 AD3d 586). Moreover, if a handrail was required, a triable issue of fact was raised by the plaintiff's deposition testimony, which was submitted by the defendant in support of its motion, as to whether the lack of a handrail was a proximate cause of the plaintiff's injuries (see Boudreau-Grillo v Ramirez, 74 AD3d 1265; Antonia v Srour, 69 AD3d 666; Wajdzik v YMCA of Greater N.Y., 65 AD3d 586; Asaro v Montalvo, 26 AD3d 306).

Accordingly, the Supreme Court erred in granting the defendant's motion for summary judgment dismissing the complaint. Since the defendant failed to meet its prima facie burden in the first instance, the Supreme Court should have denied the defendant's motion regardless of the sufficiency of the plaintiff's opposition papers (see Boudreau-Grillo v Ramirez, 74 AD3d at 1267-1268; Wajdzik v YMCA of Greater N.Y., 65 AD3d at 587).
SKELOS, J.P., HALL, ROMAN and COHEN, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court