Wear v 515 W. 168th LLC

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Wear v 515 W. 168th LLC 2012 NY Slip Op 31199(U) May 1, 2012 Supreme Court, New York County Docket Number: 104833/08 Judge: Saliann Scarpulla 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. SCANNED ON 51712012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: Justice Index Number : 10483312008 WEAR, KIM vs. 515 WEST 168TH SEQUENCE NUMBER : 001 Iq INDEX NO. MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The followlng papem, numbered I to Notice of MotlonlOder to Show Gaurs Anrwbrlng AffldavlG , were read on thir motlon tolfor -Affldavib - Exhlbltm IN O W . IWr). IWd. - Exhlblts Replying Afndavltm . . . -- .- . FILED .- MAY 0 7 2012 NEW YORK COUNTY CLERKS OFFICE Dated: 1. CHECK ONE: ..................................................................... CASE DISPOSED ........................... MOTION IS: 0GRANTED c DENIED ] CHECK IF APPROPRIATE: ................................................ SEllLE ORDER 2. CHECK AS APPROPRIATE: 3. ON-FINAL DISPOSITION 0DO NOT POST 0GRANTED IN PART OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 19 X KIM WEAR, _____-----_____II_____________________r_------~---- ------~ ----- Index No.: 104833/08 Submission Date: 2/1/20 12 Plaintiff, - against- DECISION AND ORDER 5 15 WEST 16gTHLLC, For Plaintiff. RUSSO, Darnell & Lodato, LLP 1975 Hempstead Tpke, Suite 401 East Meadow, NY 1 1554 For Defendant: The Law Offices of Edward Garfinkel 12 Metrotech Center, 28 hFloor Brooklyn, NY 1120 1 Papers considered in review of this motion for summary judgment: Notice of Motion . . . . . . . . . . . . I A f f in Support. . . . . . . . . . . . . 2 Reply Aff, . . . . . . . . . . . . . . . . 3 FILED MAY 0 7 2012 NEW YORK COUNTY CL,ERKS OFFICE HON. SALIANN SCARPULLA,J.: In this action to recover damages for personal injuries, defendant 5 15 West 168* LLC ( 5 15 West ) moves for summary judgment dismissing the complaint. On February 22, 2008, plaintiff Kim Wear ( Wear ) slipped and fell in a - - . . _ . stainvell between the fifth and sixth floors of 5-15West s premises located at 5 15 West 168thStreet. Wear commenced this action seeking to recover damages for the injuries she sustained as a result of her fall. She alleged that 5 1 5 West was negligent in failing to have handrails on both sides of the stainvell, as required by New York City Building Code 827-375. 1 [* 3] Wear testified at an examination before trial and provided an affidavit. She testified that she was staying with friends in apartment SK in the subject building at the time of her fall. At approximately 9:OO pm., she carried a large black garbage bag with garbage inside of it out of the apartment to throw in the garbage chute. She walked up the stairwell from the fifth to sixth floor, threw out the garbage in a chute on the sixth floor, and then proceed to walk back down the stairwell to the fifth floor on the left side of the stairwell. There was a handrail to her right as she was walking down the stairs. As she was walking down the second or third stair, she started to feel herself slip. She tried to grab something to break her fall. She was too far to reach the right handrail, so she reached out to her .. left. Because there was no handrail for her to grab, she reached for the wall. She fell backwards and fractured her forearm. 5 15 West now moves for summary judgment dismissing the complaint. 5 15 West argues that there can be no basis for its liability because Wear did not identify any specific condition that caused her to fall and 5 15 West did not create . . . or have notice of any condition that could have caused Wear s fall. In opposition, Wear argues that 5 15 West s motion must be denied because issues of fact exist as to whether 5 15 West s negligence i failing to maintain its n premises in a reasonably safe condition by not having a handrail on the left side of Wear explained that she was addicted to heroin at the time of her accident, but was not using heroin on the day of her accident. 2 . . [* 4] the stairwell was a proximate cause of her accident. Wear submits a report froin expert witness Anthony Mellusi ( Mellusi ), consulting engineer, dated March 30, 20 11. Mellusi claimed that he reviewed two photographs depicting the subject stairwell. Mellusi explained that his inspection of the photographs revealed the stairs to be of steel construction with marble treads with a single handrail on the open side of the staircase. It was also reported that the width of the stairs was measured at 54 . He opined that the absence of a second handrail in the stairwell was in violation of New York City Building Code 27-375, which required stairwells greater than 44 wide to have handrails on both sides. In reply, 515 West argues that (1) Wear failed to disclose Mellusi during .. discovery, rather she disclosed him approximately a month after the note of issue, affirming that all discovery was complete, was filed; and (2) in any event, Mellusi did not inspect the stairs in question, did not include copies of the photographs he reviewed, did not identify the source of the photographs, and did not explain how he knew that the stairwell was 54 wide. . .- - . -. . . - Discussion A movant seeking summary judgment must make aprima fucie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the 3 [* 5] opposing party, who must then demonstrate the existence of a triable issue of fact. Alvarea v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). Here, 5 15 West fails to meet its burden of establishing entitlement to judgment as a matter of law. In support of its motion, 5 15 West argues that Wear did not identify any specific condition that caused her fall and it did not create or have notice of any condition that could have caused Wear s fall. However, 5 15 West fails to address the crux of Wear s claim, which is that she fell because 5 15 West was negligent in failing to maintain its premises in a reasonably safe . _ condition by not having a second handrail in the subject stairwell, in violation of N.Y.C. Building Code 827-375. Wear clearly sets forth this basis for her claim in her bill of particulars and in her examination before trial testimony. 5 15 West does not address the issue of the handrail in its motion nor submit any evidence establishing that it was not negligent in failing to have a second handrail in the - __ - subject stairwell. Even in its reply papers, 5 15 West only criticizes the admission and probative value of Mellusi s report. It does not advance any arguments or submit any evidence to establish that it was not negligent in failing to have a second handrail in the subject stairwell. Therefore, the court finds that regardless of the sufficiency of the opposition papers, 5 15 West has failed to meet its burden of establishing 4 .. [* 6] entitlement to judgment as a matter of law and its motion is denied. See Winegrad v, New York U i . n v Med. Ctr., 64 N.Y.2d 85 1 (1 985); OIHalloran v City of New York, 78 A.D.3d 536 (lstDept.2010). In accordance with the foregoing, it is hereby ORDERED that defendant 5 15 West 16V" LLC's motion for summary judgment dismissing the complaint is denied. This constitutes the decision and order of the court. Dated: FILED New York, New York May 1,2012 . . ENTER: I . . . . NEW YORK COUNTY CLERKS OFFICE

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