Brady v Park City 3 & 4 Apts., Inc.

[*1] Brady v Park City 3 & 4 Apts., Inc. 2012 NY Slip Op 51918(U) Decided on October 3, 2012 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2012
Supreme Court, Kings County

Rita Brady, Plaintiff,

against

Park City 3 and 4 Apartments, Inc. and PHOENIX CONSTRUCTION, INC., Defendants



4959/10



Plaintiff Attorney: Paul W. Cutrone, Esq., 42-24 235th Street, Douglaston, NY 11363

Defendant Attorney: Ahmuty, Demers & McManus, Esqs., 200 I.U. Willets Road, Albertson, NY 11507

Defendant Attorney: Margaret Klein & Associates, 200 Madison Avenue, New York, NY 10016

David Schmidt, J.

Upon the foregoing papers, the motion by defendant Phoenix Construction, Inc. (Phoenix) for an order, pursuant to CPLR 3212, granting summary judgment in its favor and dismissing the complaint and all cross claims against it is granted.

On June 2, 2009, plaintiff Rita Brady allegedly tripped and fell in the lobby of a residential building at 97-37 63rd Road in Queens. Thereafter, she commenced this negligence action against defendant Park City 3 and 4 Apartments, Inc. (Park City), the owner of the subject premises, and Phoenix, a contractor hired by Park City to perform certain construction work in

the building lobby. According to plaintiff's bill of particulars, she fell "upon a black rubber mat that was negligently and carelessly placed in the entranceway and lobby ... and which was raised and bunched up ... causing plaintiff to fall into construction materials [2-foot square marble slabs] stored in said lobby and entranceway."

In its motion, Phoenix argues that plaintiff has failed to show that it contributed in any way to the happening of the accident since the accident's sole cause was the negligent placement of the rubber mat by Park City. Phoenix relies upon the deposition testimony of plaintiff, Chandra Jain (Park City's property manager), Edward Concepcion (a Park City security guard) and Slawomir Chrostowski (Phoenix's Job Site Supervisor). According to plaintiff's testimony, [*2]as she was entering the subject premises, she tripped over a portion of the mat which had curled up and was over a saddle board of the inner door, landing in a seated position with her back against a marble slab which was upright and leaning against the wall to her right. Both Edward Concepcion and Chandra Jain testified that Park City owned the rubber mat and others which it placed in the lobby and vestibule area of the building when it rained or snowed and that the

mats were not used by Phoenix. Slawomir Chrostowski's testimony was similar in nature to that of Park City's employees.

In her opposition to the motion, plaintiff explains that, following her stumble, she fell into

the marble tiles that had been stored close to the entrance door, causing injury to her back. She cites the deposition testimony of Mr. Chrostowski to the effect that, although space on the left side of the lobby had been set aside for the storage of tiles when the construction work was being performed, sometimes Phoenix ran out of space and had to use the right side of the lobby (where

plaintiff fell) for that purpose. Mr. Chrostowski also testified that no rope or other barrier separated the tiles from the lobby area where people walked. Therefore, according to plaintiff, it is clear that "the negligent placement of these marble tiles at said lobby entrance could cause injury to anyone who slipped and fell in this highly trafficked area of the building." Plaintiff further contends that Phoenix mistakenly focuses on what caused her to fall and ignores that there can be more than one substantial factor in causing an injury. In its opposition papers, Park City echoes the arguments advanced by plaintiff.

In reply, Phoenix faults plaintiff for failing to demonstrate that the placement of the marble tiles in the lobby was a substantial factor in causing her accident and, instead, for

arguing that the tiles were placed in a negligent manner. Since the placement of the tiles was not a substantial cause of the events which produced her injuries, Phoenix argues it that it cannot be held liable to plaintiff. According to Phoenix, it may have "furnished the condition or occasion upon which plaintiff's injuries were received, but it did not put in motion the agency by which the injuries were inflicted."

Although the issue of proximate cause is generally one for the finder of fact (see

Derdiarian v Felix Contr. Corp., 51NY2d 308, 315 [1980]), "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" (Ely v Pierce, 302 AD2d 489, 489 [2003]; see Castillo Amjack Leasing Corp.,

84 AD3d 1298 [2011]). "Evidence of negligence isnot enough by itself to establish liability. It

must also be proved that the negligence was the cause of the event which produced the harm." (Sheehan v City of New York, 40 NY2d 496, 501 [1976]). Here, the storage of Phoenix's tiles

merely furnished the occasion for the accident and any alleged negligence in their placement did not proximately cause the accident. The evidence offered by Phoenix established, prima facie, that the sole proximate cause of the accident was the negligence of Park City in using a worn rubber mat and allowing it to curl over the door saddle. In opposition, plaintiff and Park City failed to raise a triable issue of fact as to whether Phoenix's acts or omissions were a substantial factor in causing plaintiff's accident. Accordingly, the motion by Phoenix is granted and the complaint and all cross claims against it are dismissed. (see Baptiste v New York City Tr. Auth., 28 AD3d 385 [2006]; Whitehead v Reithoffer Shows, 304 AD2d 754 [2003]). [*3]

The foregoing constitutesthe decision and order of this court.

Dated: October 3, 2012

ENTER:

_______________________

J.S.C.