Ruiz v 30 Real Estate Corp.

Ruiz v 30 Real Estate Corp. 2008 NY Slip Op 00069 [47 AD3d 432] January 8, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

Jose Ruiz, Respondent,
v
30 Real Estate Corp., Appellant.

—[*1] Law Office of Max W. Gershweir, New York City (Jennifer B. Ettenger of counsel), for appellant.

Steven Wildstein, P.C., Great Neck (Michael K. Maiolica of counsel), for respondent.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered February 13, 2007, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to satisfy its initial burden of making a prima facie case of entitlement to summary judgment on the basis that the grease and garbage on the staircase in its building were not a proximate cause of plaintiff's fall (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Plaintiff, in his deposition testimony, which defendant included in support of its motion, stated that he alerted a member of defendant's staff to the condition of the staircase more than 12 hours before his fall, and that he slipped on the grease that was still present on the stairs causing him to fall down the flight of stairs (compare McNally v Sabban, 32 AD3d 340, 342 [2006]). Evidence that plaintiff had been drinking prior to his fall, and the aggressive approach to the garbage by plaintiff's dog while the dog was on a leash held by plaintiff, do not warrant a different conclusion (see Lopez v 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 AD2d 230, 231-232 [2002]).

We have considered defendant's remaining contentions, including that plaintiff, seeing that the garbage was still on the staircase, should have taken the elevator, and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and McGuire, JJ.