LaSalle v Junuis Realty, LLC
Annotate this CaseDecided on March 26, 2009
Supreme Court, Kings County
Emma LaSalle, Plaintiff,
against
Junuis Realty, LLC, Defendant.
4896/2007
Plaintiff Attorney -
Alla Raysin, P.C.
1580 Dahill Road, Suite 201
Brooklyn, New York 11204
(718) 336-1090
Defendant's Attorney -
Thomas Torto, Esq.
419 park Avenue South, Suite 504
New York, New York 10016
(212) 532-5881
Wayne P. Saitta, J.
Defendant JUNUIS REALTY, LLC, (hereinafter "Defendant"), moves pursuant to C.P.L.R. § 3212, for an Order granting Defendant Summary Judgment and for such other relief this Court deems just and proper.
Upon reviewing Defendant's Notice of Motion for Summary Judgment, dated October 31st,
2008, the Affirmation in Support of Thomas Torto, Esq., dated October 31st, 2008, and all
exhibits annexed thereto; the Affirmation in Opposition of Alla Raysin, Esq., Attorney for Emma
LaSalle (hereinafter "the Plaintiff"), dated January 14th, 2009, and all exhibits annexed thereto;
all the proceedings had herein, after hearing oral argument of counsel and after due deliberation,
Defendant's motion is denied for the reasons set forth below.
FACTS
The instant action arises out of an alleged slip and fall which occurred on an interior staircase within the building located at 166 Junuis Street in Brooklyn, NY, (hereinafter "the premises").
On or about August 9th, 2006, Plaintiff was at the premises visiting a client who resided on
[*2]an upper floor. She had been to the building on prior
occasions. As she was leaving the building and descending the interior, marble stairs, she slipped
and fell on her backside. She was holding the handrail at the time of her fall.
ARGUMENTS
In its motion,
Defendant argues that Plaintiff cannot identify what caused her to fall, nor can she demonstrate
that the Defendant had notice of any dangerous or defective condition which would cause her
fall.Plaintiff contends that she states that the stairs where she fell were deeply worn, indented
and cracked and that she need not specify the exact defect which caused her to fall. She argues
that based on her affidavit and the photographs submitted, a reasonable person could conclude
that the obvious disrepair of the stairs could have caused her fall.
She further argues it is not her burden at this juncture to show that Defendant had notice of
the defect, but that it is Defendant's burden on summary judgment to show an absence of notice.
ANALYSIS
It is well
established that a moving party for summary judgment must make a prima facie showing
of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any
material issues of fact. Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853
(1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).
Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of action. Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320, (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers.
Defendants first argue that because Plaintiff cannot identify exactly what caused her fall, summary judgment must be granted. It relies on Bottiglieri v. Wheeler, 38 AD3d 818 (2nd Dept 2007) which held that summary judgment was appropriate where plaintiff could not identify what caused his fall.
The Second Department in Bottiglieri relied on Rodriguez v. Cafaro, 17 AD3d 658 (2nd Dept 2005), which granted judgment as a matter of law upon showing that plaintiff admitted that he did not know the cause of his accident. The Second Department held in Hennington v. Ellington, 22 AD3d 721 (2nd Dept 2005), that defendants were entitled to judgment as a matter of law where plaintiff failed to present evidence sufficient to raise a triable issue of fact as to the cause of her injury. The Court noted that it was as likely that plaintiff fell due to a misstep.
In Guiterrez v. Iannacci, 43 AD3d 868 (2nd Dept 2007), the Court held that plaintiff' s claim that he would not have fallen had there been a handrail was not enough to raise a triable issue of fact stating that plaintiff[s]"failed to present any evidence connecting any allegedly unsafe condition to [his] fall". Id.
Plaintiff here submits an affidavit which states that she planted her right foot on the third step, which she recalled being uneven, cracked and defective. She states that her foot was caused to slide, causing her to fall.
Plaintiff was also able to identify at her deposition the step which caused her to fall from a [*3]series of photos of the stairs, which Defendant annexed as an exhibit to its motion. Although the photograph is not clear, it does show uneven wear and cracks on the steps, and therefore is some evidence which connects the alleged unsafe condition to her version of the facts as alleged in the complaint.
A defendant who moves for summary judgment in a slip-and-fall action has the initial burden of demonstrating that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. DeLeon v. Westhab, Inc., - NYS2d , 2009 WL 791704, (2nd Dept 2009).
Defendant submits the testimony of Yaron Madmon, the manager of the property, who stated he inspected the premises regularly and had not received any complaint as to the condition of the stairs prior to Plaintiff's fall. He further testified that he was not sure whether the LLC which owned the premises ever had any complaint regarding the condition of the stairs in the building.
Finally, Madmon did not deny that the stairs were cracked. He testified that the stairs were made of marble and that they were "very strong", even if cracked.
The Plaintiff alleges that a cracked and unevenly worn condition caused her fall, not a weakness in the marble. The cracked and worn condition of the stairs shown in the picture evidences a condition that is obvious and of such a duration that anyone conducting a regular inspection of the stairs such as Madmon would have seen the condition long before the accident. Therefore a trier of fact could reasonably find that Defendant had constructive notice of the condition.
Defendant has failed to demonstrate that there is no question as to whether they had notice of the allegedly hazardous condition of the stairs.
WHEREFORE, Defendant's motion for summary judgment is herein denied.ENTER
JSC
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
