St. John v All-Type Constr. Inc.

[*1] St. John v All-Type Constr. Inc. 2006 NY Slip Op 50682(U) [11 Misc 3d 1084(A)] Decided on April 21, 2006 Supreme Court, Kings County Schneier, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 25, 2006; it will not be published in the printed Official Reports.

Decided on April 21, 2006
Supreme Court, Kings County

HAROLD ST. JOHN, as Administrator of the Estate of MILDRED ST. JOHN and HAROLD ST. JOHN, individually, Plaintiff,

against

ALL-TYPE CONSTRUCTION INC., FRAN ST. JOHN, & HAROLD ST. JOHN JR., Defendants.



1459/2003



ATTORNEYS FOR THE PLAINTIFFS

Stephen A. Harrison

544 Bay Ridge Parkway

Brooklyn, NY 11209

ATTORNEY FOR THE DEFENDANTS ST. JOHN

Fishman & Tynan

2174 Hewlett Avenue

Suite 107

Merrick, NY 11566

ATTORNEY FOR THE DEFENDANTS ALL-TYPE CONSTRUCTION, INC.

Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski

39 Broadway, 35th Floor

New York, NY 10006

Martin Schneier, J.

Plaintiff alleges that the decedent was injured as the result of an unwitnessed slip and fall in the St. John defendants' bathroom. Decedent died (not as a result of the accident) without relating how the accident occurred. Plaintiff's theory is that negligence on the part of defendant All-Type Construction, Inc. ("All-Type") caused the floor tiles in the bathroom to lift and those tiles caused the decedent to fall. The defendants move for summary judgment. [*2]

As a preliminary matter, the Court finds that the plaintiff is not entitled to a lesser burden of proof pursuant to the Noseworthy doctrine (see Noseworthy v. City of New York, 298 NY2d 76), because there is no expert evidence that the decedent's death or memory loss was caused by the accident (see, Mancia v. Metropolitan Transit Authority Long Island Bus, 14 AD3d 665). The Court finds that the defendants have met their burden of making a prima facie showing of their entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). "In order to defeat summary judgment, a plaintiff who is relying on circumstantial evidence to prove his case has to "prove that it was 'more likely' . . . or 'more reasonable' . . . that the alleged injury was caused by the defendant's negligence than by some other agency" (Grob v. Kings Realty Associates, LLC, 4 AD3d 394, quoting, Gayle v City of New York, 92 NY2d 936, 937 [1998]).

The only description of the alleged defect is contained in the deposition testimony of defendant Harold St. John, Jr.:

Q. The day after you had the storm,

did you notice any damage to the bathroom floor

A.I noticed there was damage where the

toilet was on the side and on the side of the tub.

Q.What kind of a floor was there in the

bathroom at that time?

A.Tile floor.

Q.What was the nature of the damage?

A.Well, it seemed like it lifted up from

the water, like it wasn't like that before, the

water happened, so I am assuming the water got in

and lifted it up. I don't, I am assuming.

Thus, there is no evidence as to the size of the alleged defect or its location in relation to the decedent's fall. The Court is, therefore, unable to find that the alleged defect is the more likely' or more reasonable' cause of the accident. Accordingly, the Court finds that the plaintiff has failed to raise an issue of fact and the defendants' motions for summary judgment are granted.

This shall constitute the Decision and Order of the Court.

______________________________

J.S.C.