Williams v 150 RFT Varick Corp.

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Williams v 150 RFT Varick Corp. 2013 NY Slip Op 31242(U) June 6, 2013 Supreme Court, NY County Docket Number: 109855/2010 Judge: Eileen A. Rakower 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 611212013 [* 1] I PART PRESENT: 6- Justice - ~ Index Number : 109855/2010 WILLIAMS, TAURENCE vs. 150 RFT VARICK SEQUENCE NUMBER : 002 INDEX NO. MOTION DATE MOTION SEQ. NO, SUMMARY JUDGMENT The following papers, numbered 1 to , were read on this motion tolfor Notice of MotionlOrderto S h ~ w Cause - Afifidavits - Exhibits Answering Affidavits I CHECK ONE: . - Exhibits ................................ 2. CHECK AS APPROPRIATE: IWs). ........................ -7 a ..,........,".......... GRANTED ...~WOTIQN IS: MQN-FINAL D I S P O S I ~ ~ O ~ I CASE DISPOSED n 0DENIED 3. CHECK IF APPROPRIATE: I...,......~.....~,~...,,,,.....I........,~~,... SETTLE ORDER E] DO NOT POST p' UGRANTED IN PART UOTHER 0SUi3MlT ORDER 0FIDUCI ARY APPOINTMENT 0REFERENCE [* 2] * SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK PRESENT: Hon. EILEEN A. RAKOWER COUNTY PART 15 Justice TAURANCE WILLIAMS. 109855/2010 INDEX NO. Plaintiff, MOTION DATE 002 MOTION SEQ. NO. -v- 150 RFT VARICK CORP. D/b/a GREENHOUSE, MOTION CAL. NO. Defendant. mze ..* , The following papers, numbered 1 to Notice of Motion/ Order to Show Cause Answer - - +uWay v a i s flahibits PAPERS NUMBERED ... 1 Affidavits - Exhibits Replying Affidavits Cross-Motion: Yes 1 3 X No Taurance Williams ( Plaintiff ) brings this action to recover for personal injuries allegedly sustained when he tripped and fell at The Greenhouse nightclub located at 50 Varick Street, New York, New York ( the premises ) at approximately 1 1 :30 p.m. on August 25,2009. Defendant 150 RFT Varick C o p . d/b/a Greenhouse ( Defendant ) moves for summary judgment pursuant to CPLR $3212. Plaintiff is a hair stylist who resides in West Orange, New Jersey. The complaint alleges that Defendant owned, maintained, and/or operated the night club where Plaintiffs injury allegedly occurred. Plaintiff asserts that he had been attending a cast wrap up party held by his employer at Defendants premises and was proceeding to exit when he tripped and fell over a raised edge of a metal plate that was loosely secured to the floor and obstructed by a hanging drape. Plaintiff alleges that Defendant failed to 1 [* 3] 4 adequately illuminate the metal plate and floor surface forming a trap and nuisance constituting a dangerous and unsafe condition. Defendant submits: the second amended complaint, the verified answer to the amended verified complaint, the verified bill of particulars, a photograph of the area where Plaintiff allegedly fell, this court s compliance conference orders, deposition testimony of Plaintiffs workers compensation claim, Plaintiffs medical records, an affidavit from Mathis Van Leyden the Director of VIP services at Greenhouse, and the expert affidavit of Michael Kravitz, P.E., a Civil and Forensic Engineer. In opposition, Plaintiff attaches: the affidavit of merits of Plaintiff, photographs of the area where Plaintiff allegedly fell, the deposition of Mathis Van Leyden, the director of VIP services for Defendant, responses to Plaintiffs demands, notice of exchange of expert information, the note of issue filed on September 13,20 12, and the amended verified complaint. The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerrnan v. C t of iy New York, 49 N.Y.2d 557 [19801). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y .2d 255 I]19701). (Edison Stone Corp. v. 42nd Street Development Corp.,145 A.D.2d 249,251-252 [lst Dept. 19891). The question of whether a dangerous or defective condition exists on the property of another so as to create liability ... is generally a question of fact for the jury. (Trincere v. County o Suflolk, 90 NY2d 976,688 NE2d 489,655 NYS2d f 6 15 [ 19971). Property owners (and tenants) may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. (Milewski v. Washington Mut., Inc., 88 AD3d 853,93 1 NYS2d 336 [2011]). Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of 2 [* 4] law. (Milewski v. Wushington Mut., Inc., 88 AD3d at 855). Defects do not have to be a certain minimum height or depth to be actionable. (See, Trincere v. County o f Suffoolk, 90 NY2d at 978). Instead, courts are to examine all of the facts, including the measurements and appearance of the defect, along with the time, place and circurnstance[s] of the injury (Trincere v. County of Suflolk, 90 NY2d at 978). Photographs of a defect which fairly and accurately reflect how it appeared on the date of the accident may be used to demonstrate whether it is trivial. (See, Shenpanski v. Promise Deli, Inc., 88 AD3d at 984). The amended complaint asserts that the metal plate over which Plaintiff fell was loosely secured to the floor and obscured and obstructed by a hanging drape . It further states that the aforementioned occurrence was the result of the negligence of [Greenhouse] ... in permitting and allowing the aforementioend exit entranceway .... to be, become and remain in a dangerous and unsafe condition, the same forming a trap and nuisance and constituting a danger, menace and hazard to persons in the said premises; in obstructing and obscuring the trap and in so creating a hidden trap; in failing to adequately affix and secure the metal plate to the floor; in failing to secure the metal plate so as to be flush with the surrounding floor surface... Plaintiff states in his deposition there was an, I don t know what you call it, I think 1 called it is a lift or a step in the doorway or something that caught my toe as I went to go out and caused me to trip and fall. He describes this lift or step as a metal material. He states that after he walked into the premises, he noticed how this same metal lift or step which he fell on was catching on some of the ladies heels . The documents provided by Defendant, including the photographs dated February 8,20 12, show a narrow metal plate separating the entryway rug from the wooden floor. However, it should be noted that Plaintiff was unable to state that the pictures fairly and accurately depicted the strip on which he fell at the time he fell. Well, this photograph is flat, so it does not depict. I don t know how to say it. It is flat and the thing was not flat. (Williams deposition dated February 8, 20 12; page 8 1, line 23). The photographs are unable to demonstrate the alleged loosely secured nature of the strip such that the Court could conclude as a matter of law that they show a trivial defect. Finally, Defendant asserts that Plaintiff has provided different reasons for his fall and therefore his action should be dismissed. After the accident, Plaintiff [* 5] executed and filed a C-3 Affidavit when he submitted his application for worker s compensation benefits. In response to the question as to how did the injury/illness occur , he responded that he slipped down steps at the Greenhouse. As noted above, plaintiff states in his deposition that he was not sure if it was a liR or a step that he slipped and fell upon. In the emergency room record from St. Barnabus Hospital, Plaintiff was recorded as being injured when twisting his knee while dancing. Conflicting testimony presents questions of credibility, and questions of credibility are to be resolved by the trier of fact, not the court on a summary judgment motion. (Torres v, Dormitory Auth. O the State o N. Y., 20 11 f f NY Slip Op 325 15U [ N Y S Sup Ct 20 11I). Wherefore, it is hereby, ORDERED that Defendant s motion for summary judgment is denied. This constitutes the decision and order of the court. All other relief requested is denied. --< -- - Dated: June 6, 2013 - H W . LICEfN/ls.WWR X NON-FINAL DISPOSITION Check one: FINAL DISPOSITION Check if appropriate: DO NOT POST 4 0 REFERENCE

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