McDonnell v Bischoff

[*1] McDonnell v Bischoff 2010 NY Slip Op 51858(U) [29 Misc 3d 1217(A)] Decided on October 28, 2010 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2010
Supreme Court, Richmond County

Paul McDonnell and JEANNE McDONNELL, Plaintiff(s),

against

Eric Bischoff AND KIMBERLY BASSETT, Defendant(s).



102981/2008

Judith N. McMahon, J.

On March 17, 2008, the plaintiff, Paul McDonnell, sustained injuries when he tripped and fell on an allegedly improperly anchored fence line located at 327 Fillmore Street, Staten Island, New York. Plaintiff lived next door to the property where the accident occurred and, on the night of the accident, was returning from defendant Eric Bischoff's home after a St. Patrick's Day party. As a result of the fall the plaintiff sustained a fracture, bone infection and underwent "limb salvage surgery". On or about June 20, 2008, the plaintiff commenced this action for personal injuries sustained as a result of defendants'[FN1] alleged negligence. Presently, discovery has been completed and the defendant Eric Bischoff is moving for summary judgment seeking to dismiss the complaint on the ground that, inter alia, the alleged defect was open and obvious and plaintiff's medication/intoxication combination was ultimately the cause of plaintiff's fall.

It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

It is well settled that "an owner of real property has a duty to maintain the property in a reasonably safe condition" (Basso v Miller, 40 NY2d 233, 241 [1976]). "The imposition of liability in a slip-and-fall case requires evidence that the defendants created the dangerous [*2]condition which caused the accident, or that they had actual or constructive notice of that condition and failed to remedy it within a reasonable time" (Perlongo v. Park City 3 & 4 Apts., Inc.,31 AD3d 409, 410 [2d Dept., 2006]). Constructive notice requires that the condition is "visible and apparent and existed for a sufficient length of time before the accident such that it could have been discovered and corrected" (id.).

Here, defendant Eric Bischoff has established his prima facie entitlement to summary judgment as a matter of law by producing evidence sufficient to establish that he did not cause the accident or have notice of the alleged defective condition (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Perlongo v. Park City 3 & 4 Apts., Inc.,31 AD3d 409, 410 [2d Dept., 2006]). Defendant Bischoff contends that the cause of plaintiff's injury was his large consumption of alcohol after the St. Patrick's day party held by him that evening. Specifically, Bischoff contends that plaintiff, after consuming approximately eight beers at the party, in conjunction with plaintiff's myriad of medications, was severely inebriated which caused the fall and subsequent injuries. Bischoff also states that plaintiff has is history of falling and therefore was the cause of his own accident (id.).

Defendant Bischoff submitted the expert report of Dr. Bidanset, a board certified forensic toxicologist, who opined that plaintiff, Paul McDonnell,'s blood alcohol content (taken at Richmond University Medical Center approximately six hours after the fall) of .14% renders him intoxicated and "to a reasonable degree of toxicological certainty, that McDonnell's consumption of significant amounts of alcohol combined with powerful prescription medications was the significant causal factor in McDonnell's fall". As such, defendant Bischoff has established his entitlement to summary judgment as a matter of law.

In opposition, the plaintiff has raised triable issues of fact with respect to whether the defendant maintained his property in a reasonably safe condition (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The plaintiff has established that this improperly anchored fence line protruded approximately 16 inches out of the ground and testified that he specifically recalled tripping over the "spike". Defendant's contention that plaintiffs intoxication and was the cause of the accident does "not constitute the kind of unforeseeable or reckless conduct that would be deemed, as a matter of law, to interrupt the causal connection between the negligence ascribed to defendants and the [plaintiff's] injury" (Butler v. Seitelman, 90 NY2d 987, 989 [1997]). It is well settled that proximate cause as it hinges on questions of foreseeability is a question of fact for the jury to decide (Canela v. Audobon Gardens Realty Corp., 304 AD2d 702, 702-703 [2d Dept., 2003][finding that "the decedent's conduct was not so extraordinary or unforeseeable as to constitute a superseding event that severs the causal connection between the defendant's alleged negligence and the decedent's injuries, but rather, is an element of comparative negligence"]). Further,

[t]he existence of evidence concerning the [plaintiff's] drinking and previous falls does not make it impossible for plaintiff to prevail on the issue of causation; it is not necessarily the case that plaintiff's own conduct is equally likely to have been the proximate cause fo the accident. It is up to the jury to decide if, in fact, the cause suggested by the [defendant] is equally, or more, plausible" (Detres v. NYC Housing Auth., 271 AD2d 309, 310 [1st Dept., 2000]; Butler v. [*3]Seitelman, 90 NY2d at 989; Candela v. Audobon Gardens Realty Corp., 304 Ad2d 702, 702-703 [2d Dept., 2003]).

As a result, questions of fact exists with respect to whether defendant maintained his property in a reasonably safe condition and whether plaintiff is contributorily negligent. Therefore summary judgment is inappropriate (Perlongo v. Park City 3 & 4 Apts., Inc.,31 AD3d 409, 410 [2d Dept., 2006]).

Accordingly, it is

ORDERED that the defendant Eric Bischoff's motion [001] for summary judgment is hereby denied, and it is further

ORDERED that the defendant Eric Bischoff's motion [002] for contempt is hereby denied, and it is further

ORDERED that co-defendant Kimberly Bassett has thirty (30) days to appear for an examination before trial or defendant Eric Bischoff may move before this court for an order of contempt, and it is further

ORDERED that any and all additional requests for relief are hereby denied, and it is further

ORDERED that the Clerk enter judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: October 28, 2010E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:At this time defendant Kimberly Bassett has failed to appear in this action. Defendant's motion requesting contempt for her failure to appear for a subpoena will be addressed at the conclusion of this decision.