Conti v Conti

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Conti v Conti 2012 NY Slip Op 31793(U) July 2, 2012 Sup Ct, New York County Docket Number: 105859/09 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. SCANNED ON 711012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: B N ,J U D I W C H F Jllstico -NEW YORK COUNlY PART 10 MOTION DATE MOTION BEQ. NO. I Thr following popem, numbered 1 to -were mid on ullr motlon t o h r Notlci of MoUonl Order to Show Cmuro Anrwsring Affldavltr -Exhlblb UDTION C A L NO. -Affldwik - Exhiblb ... Replying Affldivlk CmrraoUon: 111 Ye# C NO I I - Upon hforegoing papen. t m oourt r doclrlon on thli (thorr)motion (I) im ar follow: h FILED Motlon (I) lclded In accordsncs wlth the accompanying memorandum doolrlon JUL 09 2012 NEW YORK COUNW CLERK S OFFICE Dated: I \ 3-b I& P Chwk onr: Chrck if rpproprktr: 0 FINAL Oll4POSmON [7 DO NOT POBT CC$-IION-FINAL DlBPd o a r 6 N / REFERENCE SEllIE/8UBNIIT ORDER [* 2] Vincent Conti, Plaintiff, Docision10rder Index#lQ5858/09 Mot. Seq. # 001 -againstVincent James Canti Jr. and Joanne C. Conti, Defendant. FILED 1-tor-i.Judith J Glsche: NEW VORK CLERKISOFFICE Pursuant to CPLR 2219(A) the follawtng numbered papers were considered on this motion: PAPERS NUMBERED Notice of Motion, JJB affirm., exhibits........................................................ .............t.......l VM affirm in opp., exhibits............................................................................................... 2 JJB Reply affirm.............................................................................................................. 3 Upon the foregoing papers the decision and order af Ihe court is as follows: The defendants move for summary judgment dismissing the complaint, The motion i opposed by plaintiff.' Issue has been joinad and this motion was timely s brought after the filing of ths Note of Iswe. (CPLR 53212;Brill v, Citv of New Y m, 2 NY3d 648 [2004]). The motions is, tharsfore, proprly before the court to be considered an its merits . The complaint seeks damages for personal injuries plaintiff allegedly sustained when h e slipped and fell while he was at the home of the defendants, his parents, 'Atthough this matter was scheduled for oral argument twice. plaintiffs attorney did not appear either time. The court, therefam, rnarkad the matter submitted without oral argument and it is decided solely on the written record developed by the parties. Page 1 of 7 [* 3] \ocated at 7 Harborview Court in Staten Island, New York ("premirres"), on January 21, 2007. The complaint states cause8 of action for: [1J negligent conduct (flrst came of action); [2] negligence in failing to control, supervlse, maintain and repair the premlses and/or to warn about hazardous conditions (second cause of action); and [3] public o r private nuisance (third caum of actfon). The underlying claim by plaintiff is that when he exited the front door to the premises, he slipped and fell on debris that had accumulated on the cement front steps. He erustained injuries to both of his ankles, requiring surgery. Ha claims that the debris conshted of piems af cement that had accumulated a8 a consequence of the deteriorated condition of the steps. During diwamy, both plalntlff, and his mother, Joanne C. Conti, appeared for depositiona. In addition, photographs of the concrete stairs were provldad to the plaintiff. maty of the Araumsnts of the Defendants argue that the complaint should be dismissed because: the plaintiff cannot identify the location or cause of the accident and that the defendants dM not create ar have notice of the allegedly hazardous condition. Plaintiff argues that by identifying the three etep staircase in front of the premiaea, and stating that he felt little atones and cement under his feat before he fell, he has provided sufficient detail of the accldent to present the matter to the jury. Plainttff does not argue that defendanm created the condition. He doe8 argue, however, that cement debri8 on the stairs was a recurring condltion, which Joanne Contl knew about. evidence to raise an issue of notice. Pags2of 7 He claims that them Is sufficient [* 4] Discussion A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to ellminate any rnaterlal issues of fact from the c a m m a d v, New York Unlv, a r . , 64 N.Y.2d 851, 853 [lQ85]). The evidentlery proof tendered, howevsr, must be in admissible form (Frlsngb of Animals v. Aaaoe. Fur M a - , 48 N.Y.2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the exlstence of a triable Issue of fact Wl a-ct v Hosp., 68 N.Y.2d 320, 324 [1986]); Luckeman v. City of Naw Yea, 49 N.Y.2d 557 [1980]). Defendants argue that because plaintiff cannot Identify the exact step on which he) fell and he is speculating that cement debris w88 the cause of his fall, the complaint should be dismissed. They argue that plaintiff could only speculate that he fell on debris that came from the deteriorating cement stairs. At his deposition, plaintiff responded at one polnt that he was not certain what step he was on when the accident happened. He later stated that he could not tell whlch step he was on when the accident occurred nor could he respond with certainty whether one or both feet came out from under him when h r fell (vC2 pp 41-55). e ebt When asked about how his feet came out from under him, he gave the follow response: Q. How did your feat come out from under you? A. Ifelt something underneath my foot like something brought me up. Q. Somethlng brought you up? 'uVC'rrefers to the May 3, 2011 deposition testimony of Vincent Contl. Page 3 of 7 I I [* 5] A. Yeah, like I slipped on something. Q. You sllpped? A. Yes. Q. Was there snow of ice on the stairmae? A. No Q. Was it compbteiy clean? A. There was debris. Q. What kind of debris was on the stairway? A. Like little stones and cement (indicating). Both plaintiff, who had personal knowledge of the staimrell before the accident, and the defendants, Joanne Conti, testified to the general deteriorated condition of the ataircaaa, before the accident, albeit not the particular debris that plaintiff now claims caused his fail. While e plaintiff cannot speculate a5 to the cauw of an accident j4udson Armored Car and Courier Serviw,301AD2d 392 [l" dept. 2003]), causatlon may stili be established by circumstantial evidence. -tino v. Web& 57 AD3D 472 [2ND dept. 20081). At bar, there is sufficient evidence presented from which a finder of fact could conclude that plaintiffs fall was due to the stones and cement that he felt underfoot and which he saw on the atairs immediately afler hi8 fall. This is not speculative because plaintiff stated he actually sensed (felt) the debris under his feet and then immediately observed the offending material. This provide8 a aumuient nexus between the material obaarved and the cause of the accident. G M o n Vil, 41 AD3d 130 11' dept. 2007X). These clrcumstancee are distinguishable from Page 4 of 7 [* 6] those in the c a m of Thornnson v, Comaek Multi~lex Cinema (83 AD3d 029 [2ddept. 201 l]), upon by defendants. relied in T h o m m , plaintiff affirmatively stated at her deposition that she did not know the cause of her fall and only $peculated, based upon her huaband's obsetnratians about the condition of the atairs, that ahe must have fallen as 8 result of the deteriorated condition of the sitars. Here, however, the plaintiff is clear that he felt something under his feet, like pebbles, right before he fell and that immediately after his fall, he observed debrls consistent with that aensation. Them is also evidence that the source of the debris is the deteriorating cement stairs, a8 both plaintiff and defendant testified that they had seen similar debris before the accldent. Moreover, there was no other possible source of the debris identified. (See: v. JJC Constr, Corn., 92 AD3d 559 [l"dept. 20121). Nor Is plaintiffs failure to identify the preci8e step on which he fell fatal to his clalm. Plaintiffs testimony describes the stalrcasls of consisting of two steps and a landing, and that hia feet came out from under him after feeling stone$ and cement beneath his feet. (Radrwuz v, L e w H , - 2299513 [l" 20121; Tomaino v. 700 dept. LLC I -AD3d -, 2112 WL 84lh Street Core., 72 AD3d 480 [Im dept, 2010]). I 1 Defendants separately argue that bacauaa there w88 no prior notice to defendants of the deb& on which plalntmfell, the case must be dismissed. Plaintiff has conceded that the defendant8 dld not actually create the condition. Where a landowner does not actually create o hazardous condition on hls or her property which causes Injury to another, s/he can only be held reaponalble if aha had actual or Pege5of 7 f [* 7] constructive prior n o k e of the hazardous condition. (Boderick v, RY Mammant Co., h., 71 AD3d 144 [l*' 20091). dept. Plaintiff, however, does not claim that defendant knew about the exact concrete debria which he claims caused him to fell. Instead, he claims that the cement stairs were deteriorating and that the condition of concmte debris on the stairs wa6 a recurring one. A plaintiff can establish constructive knowledge by proving that defendants were actually aware of an ongoing and recurring unsafe condition, which regularly went unaddressed. (wvv, Hllton Hotels Cor&, 73 AD3d 559 [la 20101; w r b o v. hllucghv, 52 AD3d 1064 [3' dept. ZOOS]). dept. At bar, defendant Joanna C. Conti teatified that the atsirs were old and "concrete was coming out from in between" (JC3 ebt pp.12). She futtbr t a t l f l d that concrete from the bricks would wind up on the landing and on the ateps. She stated that "from time to time" she and her cwiefendant husband would 888 debris, consisting of concrete and brick and that her husband would clean It up. (JC ebt ppl3-14). This is sufficient to raise an issue of fact for the jury regarding whether there was a recurrent conditlon that otherwise satisfies the requirement of prlor notlce. The court lsavea to the trier of fact the issues of credibility. Conclu8lon In accordance herewith it Is hereby ORDERED that defendant$' motion for summary judgment is denied and it ia further ORDERED that this case is ready for Mediation and subaequent trial, it Ea further 3JC refers to the May 3, 2011 deposition testimony of defendant Joanne Conti. Page6of 7 [* 8] ORDERED that the plaintlff shall serve a cap; of this decisiodo dr on Ckrk in e the Ofice af the Trial Support SO the case can be scheduled for mandatory prs-Mal madlation and eventual trial: and it is further ORDERED that any requested relicJf not otherwise expmssly grant& herdn 1 5 d~anled and it is further ORDERED that this constitutes the decision arrd order of .the court. Dated. New Yark, New York July 2. 2012 SO ORDERED: FILED N E W YORK COUNTY CLERK'S OFFICE

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