Mascia v Robbins Lane Elementary Sch.

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Mascia v Robbins Lane Elementary Sch. 2012 NY Slip Op 31696(U) June 14, 2012 Sup Ct, Nassau County Docket Number: 3896/09 Judge: Karen V. Murphy 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] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 11 NASSAU COUNTY PRESENT: Honorable Karen JI M urphv Justice of tie Supreme Court LORI MASCIA, Index No. 3896/09 Plaintiff(s), Motion Submitted: 4/26/12 Motion Sequence: 003, 004 -againstROBBINS LANE ELEMENTARY SCHOOL, SYOSSET CENTRAL SCHOOL DISTRICT, and SYOSSET BASKETBALL LEAGUE, INC., Defendant(s ). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers........ ................... Reply...... ....... .... Briefs: Plaintiff' slPetitioner ' s........................................ Defendant' s/Respondent' s.................................. Motion by defendants Robbins Lane Elementary School Robbins ) and Syosset Central School District (" Syosset CSD" ) for an order pursuant to CPLR 9 3212 granting them summary judgment dismissing the complaint as against them is granted. Cross-motion by defendant Syosset Basketball League , Inc. (" SBL" ) for an order pursuant to CPLR 93212 granting it summary judgment dismissing the complaint as against it is granted. On December 8, 2007 , plaintiff attended her daughter s intramural basketball game which was supervised , operated and controlled by the SBL. The game and accident took place at Robbins Lane Elementary School located at 157 Robbins Lane , Syosset , New York. [* 2] Plaintiff alleges that she was caused to trip and fall while she was walking down the middle of the gymnasium stairs to get to the seats. Plaintiff claims that the stairway was overcrowded , not properly monitored , and the handrails were inaccessible. Defendants move for summar judgment dismissing the complaint on the grounds that: plaintiff is unable to establish the cause of the alleged accident; plaintiffis unable to establish that a dangerous or defective condition existed; and plaintiff is unable to establish that defendant had actual or constructive notice of the dangerous condition. In support thereof, Robbins and Syosset CSD rely upon the deposition testimony of plaintiff; the deposition testimony of Charles Abner , the Director of School Facilities and Operations , an employee of the Syosset Central School District; and the deposition testimony of Jeffrey Levy, the President and Administrator of the Syosset Basketball League. Overall , defendants maintain that they are entitled to summary judgment dismissing the complaint as plaintiff admitted during sworn testimony that she did not know the cause of the accident and is unable to establish that a dangerous condition existed. In addition SBL argues that the alleged " overcrowding " condition arguendo it existed , was readily observable and in her plain view. , assuming In opposition to the motion , plaintiff asserts that summary judgment is unwarranted here as plaintiff was forced to enter the gymnasium by going down a crowded stairway where people were standing on each side , thus preventing plaintiff from being able to access the available handrails. In addition , Robbins and Syosset permitted SBL to hold events at their premises without taking adequate measures to prevent har as evidenced by the fact that Robbins and Syosset did not require the application for community use of school facilities to be fully completed or further investigated. Nor were there any agreements requiring SBL to take adequate crowd control measures. In support thereof, plaintiff submits her own affidavit and a copy of the subject application. In her affidavit , plaintiff states in relevant part that " since the stairway was crowded it was very difficult to navigate down the stairs due to the fact that I was required to walk down the middle of the stairs while trying to avoid stepping on or bumping into the people who were standing on the sides of each stair watching the game that was already taking place. In response thereto , SBL argues that such statements are contrived as there was no testimony/mention of having to " navigate " down the stairs. Further , the affidavit was tailored to create an issue of fact as it contradicts plaintiff's prior 50- h and deposition testimony regarding what caused her to fall. SBL further contends that the sole cause of , " " ( [* 3] plaintiff's accident was her own conduct. This is particularly true since plaintiff cannot identify the cause of her fall and as such , any other finding of proximate cause would be based on speculation and is fatal to plaintiff's case. Robbins and Syosset SBL reiterate that plaintiff's affidavit and counsel' s affirmation fail to provide any relevant facts that would indicate that plaintiff possesses definitive knowledge of what caused her accident or that a dangerous or defective condition existed at the time of the accident. A propert owner has a duty to maintain its propert in a reasonably safe condition which " may also include the duty to warn of a dangerous condition Cupo v. Karfunkel D.3d 48 , 767 N. 2d 40 (2d Dept. , 2003)). A propert owner , however , has no duty to protect or war against an open and obvious condition that is not inherently dangerous (see Atehortua v. Lewin 90 A. D.3d 794 935 N. S.2d 102 (2d Dept. , 2011), Iv den 18 N. 811 (2012); Surujnaraine v. Valley Stream Cent. High School Dist. 88 A. 3d 866 , 931 S.2d 119 (2d Dept. , 2011); Katz v. Westchester County Healthcare Corp. 82 A. D.3d 712 , 713 , 917 N. S.2d 896 (2d Dept. , 2011)). (W)hether a dangerous or defective condition exists on the propert of another so as . to create liabilty depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury (Trincere v. County of Suffolk 90 N. Y.2d 976 , 977 688 N. 2d 489 665 N. S.2d 615 (1997) (internal quotation marks omitted); see Cassone v. State of New York 85 A. D.3d 837 838- 839 925 N. S.2d 197 (2dDept. , 2011); Gutman v. Todt Hill Plaza, LLC 81 A. D.3d 892 , 892- 893 , 917 N. 2d 886 (2d Dept. , 2011)). Further whether a hazard is open and obvious cannot be divorced from the surrounding circumstances (Atehortua v. Lewin, supra,. Katz v. Westchester County Healthcare Corp., supra). A condition that is Qrdinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" (Calandrino v. Town of Babylon 95A. D.3d 1054 944 N. S. 286(2d Dept. , 2012)). To demonstrate its entitlement to summary judgment in a slip-and- fall case , a defendant must establish prima facie that it did not create the condition that allegedly caused the fall , and didnot have actual or constructive notice of that condition for a sufficient length of time to remedy it" (Oliveri v. Vassar Bros. Hosp. 943 N. 2d 604 , 2012 WL 1605961 (2d Dept. , 2012), quoting Cummins v. New York Methodist Hosp. 85 A. 1082 , 1083 , 926 N. 2d 313 (2d Dept. , 2011), quoting Molloy v. Waldbaum, Inc. , 72 D.3d 659 , 659- 660 , 897 N. 2d 653 (2d Dept. , 2010); see Milano v. Staten Is. Univ. Hosp. 73 A. D.3d 1141 , 903 N. 2d 78 (2d Dept. , 2010)). [* 4] In a trip and fall case , (a) plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action , since , in that instance , the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation (Boudreau- Grillo 2d 485(2d Dept. Louman v. Town of 74 A. 3d 1265 , 904 N. , 2009), (internal quotation marks 2d 112 (2d Dept. 60 A. 3d 915 876 N. see Knox v. United Christian Church of God, Inc. 65 A. D.3d 1017 884 N. 2d 866 (2d Dept. , 2009)). , 2010); v. Ramirez Greenburgh, and citations omitted); Applying these principles to the case at bar , the movants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that plaintiff did not know what caused plaintiff to fall on the steps. (See Knudsen v. MamaroneckPostNo. 90Dept. of New York 94A. 3d 1058 , 942N. S.2d800(2dDept. 2012); Yefet v. Shalmoni 81 A. D.3d 637 915 N. 2d 866 (2d Dept. , 2011); Mortone v. Shields 71 A. D.3d 840 , 840- 841 , 899 N. 2d 249 (2d Dept. , 2010)). Plaintiff alleges that she fell on the stairs because they were overcrowded. Plaintiff s evidence does not raise a triable issue of fact as to whether her fall was proximately caused (Knudsen v. Mamaroneck Post No. 90 Dept. of New York supra; Noelv. StarettCity, Inc. 89 A. D.3d906 , 932 N. 2d 727 (2dDept. , 2011). " Since it is just as likely that the accident could" have been caused by some other factor , such a by the alleged unsafe condition. misstep or loss of balance , any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation (see Zalot v. Zieba 81 A. D.3d S.2d285 (2dDept. quoting Teplitskayav. 3096 Owners Corp. 289 A. 478 , 735 N. 2d 585 (2d Dept. , 2001)). , 2011), is dismissed. 935 917 2d477 In view of the foregoing, the motion and cross-motion are granted and the complaint The foregoing constitutes the Order of this Court. 2012 Mineola, N. Dated: June 14 J. S. XXX ENTERED JUN 1 9 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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