Collins v New York City Hous. Auth.

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Collins v New York City Hous. Auth. 2012 NY Slip Op 30710(U) March 21, 2012 Supreme Court, New York County Docket Number: 105964/2010 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] ___- 7 I , ' ' --.+- 1 Index N'mber : 105W/2010 COLLIN!S,CHARLENE vs. NYCHA SEQUENCE NUMBER : 002 7 I SUMMARY JUDGMENT . MAK 23 2012 NEW YOHK COUNV CLERK'S OFFICE [* 2] SUPREME COURTOF THE STATE NEWYoRK OF COUNlY OF NEW YORK: PART 10 x I - CHARLENE COLLINS, DECIS IOWORDER Index No. 105964/2010 Seq #: 002 Plaintiff, -againstNEW YORK ClrV HOUSING AUTHORllY, MAR 23 2012 Defendant. x _ I - tdEW YOHK C O U N R CLERKS OFFICE Recitation, as requkd b y CPfR § 2279 [a], of the pap813 considenxi in the W i e w of this (these)motion(s): Papers Numbered Defs nlrn (sep back) (3212) w/DB affirm, exhs........................................................... 1 2 Pltfs opp w / A W affirm, CC affld.................................................................................... 3 DePs reply w/DHB .......................................................................................................... 4 Stip to adj....................................................................................................................... 5 Hon. Glsche J.: Upon the foregoing papea, the decision and order of the court is as follows: This is an action for personal injuries by plaintiff CHARLENE COLLINS ("Plalntiff") against defendant, the NEWYORKC I N HOUSING AUTHORITV("NYCHA or "Defendant"), owner and operator of 530 W.55" Street, Apt. 3D,where a terrace door fell on Plaintiff, injuring her. Presently before this court is NYCHA's timely motlon for summary judgment (CPLR Q 3212; * lv. Citv of New York, 2 N.Y.3d at 652 [2004]) dismissing the complaint. Plalntiff opposes In all respects. Facts and Arguments Presented Plaintiff clalms to have suffered injuries on February 20, 2009, at approximately 200 am., when the sliding terrace door in her apartment fell off its track and landed on Page 1 of 9 [* 3] tap of Plaintiff, pinning her between the terrace door and a dog cage. Plalntiff contends that NYCHA Is llable for her injuries because It carelessly and negllgently maintalned the premises. This contention is based on the assertion that NYCHA failed to properly maintain and repair the terrace door despite notlce of Ita defective and hazardous condltion. Plaintiff testified at a 50-H hearing, before she commenced this action and has been deposed by Defendant. Plafntlff testifled to the following events: Plaintiff has two dags, called Winter and Blondfe, that she lets out onto her terrace at feast three times per day. The dogs either use the "doggy door installed by Plaintiff to access the terrace or Plalntlff lets them out by opening the terrace door. The terrace door is made of glass and slides open behind another stationary glass panel. According to Plaintiff, the terrace door was very dlfflcult to slide open. Plaintiff stated that for "a couple of months" before the accident, there was no handle on the door and as of January 2009, the door would not open and close "wlthout the use of a hammer almost." Plaintiff explained that she, in fact, used a hammer from a 'little lady home kit" to "bang* the base of the door until it slid open or closed. Plaintiff also testlfled at her deposition that she used the hammer "for leverage" to pry open the door. Plaintiff stated that she telephoned NYCHA to complain about the broken handle on her terrace door, and NYCHA responded that they "don't have handles anymore." The number she called had been provided by NYCHA Itself. Plaintiff testified she also made a complaint to NYCHA's management office in person about the defective terrace door, but NYCHA neither inspected the condition nor flxed the problem. On February 20 2009, at approximately 2:OO am., Plaintlff testified that her dog, Winter, was barking near the terrace door so she manually let the dog onto the terrace Page 2 of 9 [* 4] because Winter won t go out the doggydoor. When the dog re-entered the apartment, Plainti had dificulty closing the door. Plalntlff was SO fed up wtth the situation that she admittedly gave [the door] a good yank, whereupon the door popped off the track and fell onto Plaintiff, fmpping her between the door and a Iarge dog cage. While conceding that It received notice of the malfunctioningterrace door, NYCHA contends that its failure to malntain the terrace door was not the proximate cause of Plaintiffs injury. Rather, it claims Plaintiffs intervening action of yanking the door with such force was the sole proximate cause of the accident NYCHA further argues that although Plalntiff was aware of the malfunctlonlng door, and the risk of injury, she assumed the risk ofinjury each tlme she used the defective door. NYCHA further argues that Plalntlffs conduct severed the causal connection between NYCHA s failure to maintain the terrace door and Plaintiffs Injury, and therefore severs Defendant s liability to Plaintiff. In opposition, Plaintiff first argues that NYCHAs motion for summary judgment should be denied as facially insufficient because It is not supported by an affidavit of a person with personal knowledge of the facts at issue, it i only supported by the s affirmation of NYCHAs attorney. Plaintiff denles that she was the sole proxlmate cause of her accident and alleges that if anythlng, it was foreseeable that Defendant s failure to properly maintain its premises could result in an injury. Plaintiff finally argues that NYCHAs fallua to fix the terrace door violates RPL 5 235(b), the warranty of habitability and that the lack of a functioning terrace door deprives Plalntiff of an essential service. Page 3 of 9 [* 5] Dlscusslon - Summary Judgment Burden of Proof To prevail on this motion for summary Judgment, NYCHA has to make a prima facieshowing of entitlement to judgment as a matter of law, tetnderlng sufficient evidence to eliminate any material issues of fad from the case (Wlnegrad v. New York Univ. MIXI. Ck., N.Y.2d 851, 853 [1985]). Only if this burden I met does it then shift 64 s to the opposing party who must submit evidentiary facts to controvert the allegallons set forth in the movant's papers to demonstrate the existence of a triable issue of fact (Alvarez v. Prosnect Hosn., 68 N.Y.2d 320,324119861; Zuckennan v. Citv of New Yo*, 49 N.Y.2d 557 [1980]). Plaintiffs argument, that NYCHA's motion for summary judgment i faclally s insufficient because NYCHA did not submit an affidavit of a person with personal knowledge of the facts at issue, but only submitted an attorney affirmation is rejected. "The fact that Defendant[s'] supporting proof was placed before the court by way of an attorney's affldavltannexing . . . deposition testimony and other proof, rather than affidavits of fact on personal knowledge, does not defeat Defendant[$'] right to summary judgmenr (Olan v. Farrell Lines, 64 N.Y.2d 1092,1093 [1985]; J-lloeffnerv. Orrick, Herrindm & Sutcliffe, LLP, 61 A.D.3d 614,616 [lst Dept. 2009n.Therefore, NYCHAs motion is facially sufficlent and should not be denied for that reason. Negligence It is well established law that a landowner has a non-delegable duty to maintain its property in a reasonably safe condition under exlstlng circumstances, which includes the likelihood of injury to a third party (Perez v. Bronx Park South, 285 A.D.2d 402 [lst Page 4 o g f [* 6] Dept. 2 0 j . This common law duty is, however, tempered by the requirement that a 01) plaintiff seeking recovery must establish that the landlord had actual or constructive f notice o the hazardous condition that precipitated the injury m n a l ardo v. Heatth & Racnuet Club, 279 A.D.2d 134 [lst Dept. 20001). As the owner of the subject premises, NYCHA has the burden of proving on this motion that it did not create the dangerous condltlon alleged, nor did It have a suffident opportunity, within the exercise of reasonable care, to remedy the situation {see Gordon v, American Mus. of Nat. Hist., 67 N.Y.2d 836 [1986]; Lewis v. Metropolitan Tramp. Auth,, 99 A.D.2d 246 [lst Oept. 19841 affd 64 N.Y.2d 670 [1984]; see, Merwr v. City of New York, 223 A.D.2d 688,689 [2d Dept. 199eJaffd 88 N.Y.2d 955 [1996]). Here, NYCHA conmdes that it was aware of Plaintiffs malfunctioning terrace door but did not fix it, even after Plalntlff complained. However, NYCHA maintains that it is not liable to Plalntlff because Plaintiffs conduct was the superseding, sole proximate cause of her injuries. For the reasons articulated below, the court flnds that NYCHA has failed to establish that, a8 a matter of law, Plaintiff was the sole proximate cause of her injuries. To establlsh proximate cause, Defendant's negllgent conduct must be a substantial factor in causing of PlaintiWs injury (Derdiarian v. Felix CQntr. Corn,151 N.Y.2d 308, 314 [1980]). It Is well established law that "[sJeveral acts may occur to produce a result; one or more being the proximate cause - 275 (1945). When Plaintiffs " Folev v. State , 294 N.Y. conduct contributes to her injuries, the fact finder must assess whether that conduct is a normal or foreseeable consequence of Defendant's Page 5 of Q [* 7] negligence (Bolfax v. Jov Dav GimQ 6 7 N.Y.2d 617 [1986]; Derdiarian, 51 N.Y.2d 308, , 315 [ 19801). If the intervening act Is extraordlnary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant s conduct, it may well be a superseding act which breaks the a u s a l nexus (Derdlarlan, 51 N.Y.2d at 316[1980]). The issues of proximate cause and foreseeability are generalty for the fact finder to decide (Derdlarlan, supra). Defendant is entitled to summary judgment based upon the absence of proximate causation only when Oefendant proves either that the Plaintiff cannot establish the cause of her injuries, or when Defendant proves that its conduct, even if negligent, did not cause Plaintiff s v. accident (Rcdi@~ez E&P Assoc, , 2 0 Misc. 2d 1129(A), 872 N.Y.S.2d 693, affm. 71 A.D.3d 405 (2010); see also Canwo v, Noah Builders, Inc., 52 A.D.3d 758 [2d Dept. 20081; Pluhar v. Town of Southhampton, 29 A.D.3d 975 [2d Dept. 20081). In support of its claim, that NYCHA is not the proximate cause of Plaintiffs injuries, NYCHA owers Plaintiffs testimony from her 50-h hearing and deposition. Plaintiff testified that she was aware that the terrace door was malfunctioning, b e c a w there was no handle on the door and It was extremely difflcult to open and close. Plaintiff further testified that she yanked the door shut with some force because the door would not close and she was annoyed. Defendant argues that although it had notice of the malfunctioning terrace door and failed to repair the dangerous condition, Plaintiff was equally aware of the dangers of using the broken door and yanking it with force. Thus, NYCHA argues that Plaintiffs action of yanking the door dosed on February 20,2009 severed the chain of causation, rendering NYCHA not liable to Plaintiff for her injuries. Page 6 of 9 [* 8] The evldence offered by NYCHA fails to establish entitlement to summary judgment on proximate causatlon grounds. NYCHA offers Plaintlffs testlmony to establish that the absence of proximate cause is beyond factual dispute. Instead Plaintiffs testimony highlights the issue of fact as to proxlmate cause. There is evidence establishing that Plaintiffs injuries were proximately caused by NYCHAs failure to malntaln Plaintlffs terrace door, In additlon to other evidence establlshing that Plaintiffs accident was due to her own actions, namely yanking the door and using a hammer as leverage on numerous occasions. A jury could conclude that once the door was malfunctioning, Plaintiffs yanklng on the door or use of a took to close It was foreseeable. Thus, Plaintiff's actions wore not necessarily so far removed from NYCHAs conduct as to break the causal nexus. Therefore, the evidence as to the mu88 of Plaintiff's accident is disputed and there exists a triable Issue of fact as to the proximate cause of Plaintiffs injuries. Primary Assumption of Risk The doctrlne of primary assumption of fisk provides that a voluntary participant in a aportlng event assumes the known risks normally associated with that sport (see ~&@JI v. State of New York, 90 N.Y.2d 471,484 [1097]). The doctrine applfes when injury sterns from risks inherent in a sport actlvity in which a plaintiff voluntarily partlclpates and plaintiff is aware of and appreciates the risks associated with the sport activity,( ;I d Turcotte v. F& , 68 N.Y.2d 432 [1988]). The primary assumption of risk doctrine does not absolve defendant from its negllgent or reckless conduct if the injury suffered by plaintiff I not Inherent in the sport or activity 0. s Page7Qf 9 [* 9] The doctrine has also been applied to cases not involving sports or recreational ctrlc Inc., 41 A.D.3d 379 [Ist Dept. 20071 8 activities ] (court held that plaintiff assumed the risk of injury when climbing out of a stalled elevator); j M m - t s v. New York Citv Houain4 Authorltv, 257 A.D.2d 550 [ l s t Dept. 1999J (court found that plaintiff did not assume the risk of injury because he did not appreciate the risk)). This doctnne is a complete bar of recovery only when applied to a situation where there is an elevated risk of danger (Rodriquez v. New York City H o u s b Authoritv, 211 A.D.2d 328 (1st Dept. 1995), rev'd on other grounds, 87 N.Y.2d 887 [19!25]). Here, Plaintiffs conduct did not rise to the level required for the doctrine of primary assumption of rlsk to be applied as there was no elevated risk of danger. Therefore, the primary assumption of risk defense is unavailable to NYCHA, and does entitle NYCHA to summary judgment in its favor. Alternativdy, non-primary assumption of risk does not bar complete recovery, but diminishes Plahtlff's recovery "in the proportion to which he contributed to his own injuries" u; v. Fell, 68 N.Y.2d 432, 438 [1986]). The determination whether Turcotte Plaintiff had a non-primary assumption of rlsk and is thus comparativety negligent is for the trier of fact to decide. Real Property Law 5 235 Although clalrning Defendant violated RPL 5 235, Plaintiffs complalnt set forth onfy one cause of action for negligence. No separate breach of contract clalm under RPL 5 235 is alleged. Therefore, Plaintiffs argument that NYCHA's conduct also violates RPL 5 235 is not considered by this caurf in deciding Defendants motion. Page 8 of 9 [* 10] than its adversary (Friends ofAnimals v. Assoc. Fur &mufact. urers, 40 N.Y.2d 1065 [ 19791). By their very nature, negligence cases do not lend themselves to summary judgment because the issue of whether the defendant (or plaintiff) acted reasonably under the circumstances is rarely an issue that can be decided as a matter of law m r l t a v. Schmitder, 48 N.Y.2d 471 [1979]). Here, NYCHA falled to meet its burden of proof because there are triable issues of fact requiring the denial of NYCHA's motion (Wlnenrad v. New Yo& UnW. Mad, Ctr., 64 N.Y.2d 851, 853 [1985]; RotubaEllfrud8s v. Ceppos, 46 NY2d 223 [1978]). The determination whether NYCHA was negligent is for the trier of fact to declde Wgariira v. Schmiedar, supra). Order In accordance with the foregoing, it i hembF s ORDERED NYCHAs motion for summary judgment is denled in its entirety as that there are triable issues of fact; and it Is further ORDERED this case is to proceed to mediation; Plaintiff shall serve a copy of this that order on the office of trial support so mediation can be scheduled; and It Is further ORDERED any relief requested that has not been expressly addressed in this that decision, has been conslderad by the court and is hereby denied; and it is fu&r ILED ORDERED this constitutes the Decision and Order o the court. that f So Ordered: ~ I Dated: New York, New York MAR 23 2012 NEW YOHK COUNTY CLERKS OFFICE . March 21,2012 I Hon. Judith m c h e , JSC Page9of 9

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