Rosner v 140 E. 28th St. Owners Corp.

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Rosner v 140 E. 28th St. Owners Corp. 2013 NY Slip Op 31872(U) August 9, 2013 Sup Ct, New York County Docket Number: 107716/11 Judge: Shlomo S. Hagler 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 811312013 [* 1] [* 2] SHLOMO S. HAGLER, J.S.C.: Defendant 140 E. 28 h Street Owners Corp. ( defendant or 28th Street Owners Corp ) moves, pursuant to CPLR 4 3212, for an order granting it summary judgement dismissing the complaint. Plaintiff Diane Rosner ( Rosner or plaintiff ) opposes the motion. BACKGROUND Plaintiff brought this action to recover damages for personal injuries when she tripped and fell on am interior two-step staircase in the vestibule of residential premises owned by defendant located at 140 East 28th Street, New York, NY ( subject building ). Plaintiff was ascending the steps to leave the subject building in which she resides. The steps lead from the lobby up to a street level landing where the front door of the subject building is located. The street floor vestibule serves as the subject building s exit passageway. A small six-inch handrail is bolted to the wall on one side of the stairs. There is no handrail on the other side of the stairs. In fact, plaintiff avers that as she slipped, she reached out, but the handrail on the left side of the staircase was too far away to reach, and there was no handrail on the right side. (See Affidavit of Diane Rosner, sworn to on December 3, 2012, attached as Exhibit D to the opposition papers). [* 3] SUMMARY JUDGMENT The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case (Smalls vAJIlndus., Inc., 10 NY3d 733,735 [2008]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395,404 [1957]). The [flailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr ,64 NY2d 85 1,853 [ 19851). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. [Mlere conclusions, expressions of hope, or unsubstantiated allegations are insufficient for this purpose (Zuckerman v City ofNew York. 49 NY2d 557,562 [ 19801). It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof) (Vega v Restani Constr. Corp., 18 NY3d 199, 505 [20 121). Defendant has a duty to maintain ts premises in a reasonably safe condition (Kellman v 4.5 Tiemann Assoc., 87 NY2d 87 1 [ 19951). Defendant owed a duty of reasonable care to keep the stairway safe (Tavis v 885 ThirdAve. Corp., 43 AD3d 691 [lst Dept 20071). Defendant, as lessor, remains responsible for common passageways in an apartment building including stairways (Cook v Rezende, 32 NY2d 596 [1973]; Lievano v Browning School, 265 AD2d 233 [Ist Dept 19991). However. in order to recover damages, a plaintiff must establish that the defendant created or had actual or constructive notice of the condition the precipitated the injury (lrizarry v 15 Mosholu Four, LLC, 24 AD3d 373 [lst Dept 20051). -2- [* 4] DISCUSSION In support of its motion, defendant argues that plaintiff is unable to identifi the cause of her accident and that there was a handrail that the plaintiff chose not to use. Plaintiff argues that the absence of handrails on both sides of the stairway in the lobby of defendant s building was the proximate cause of her injuries. Plaintiff also claims that the stairs were slippery. However, she does not recall seeing any liquid on the floor. (See EBT of Diane Rosner, attached as Exhibit C to the Motion ( Rosner EBT ) at 35). Plaintiff also averred that she does not know what caused her to fall, that she just slipped. (Rosner EBT at 52). It is well settled that absent proof of the reason for plaintiffs fall other than the inherently slippery condition of the floor, no cause of action for negligence can properly be maintained. (Kruimer v Nutl. Cleaning Contractors, Inc., 256 AD2d I [lst Dept 19981). In opposition to the motion, plaintiff also alleges that pursuant to the Administrative Code, the stairway was required to have a handrail on both sides, and the lack of the required handrail was the proximate cause of her injuries. Administrative Code tj 27-375 provides, in relevant part, that interior stairs shall comply with the following requirements: (f) Guards and handrails. Stairs shall have . . . handrails on both sides, except that stairs less than forty-four inches wide may have a handrail on one side only. Handrails shall provide a finger clearance of one and one-half inches, and shall project not more than three and one-half inches into the required stair width. (1) Stairs more than eighty-eight inches wide shall have intermediate handrails dividing the stairway into widths that maintain the nominal multiples of twenty-two inches, but the widths shall not be greater than eighty-eight inches nor less than forty-four inches. However, neither plaintiff nor defendant proferred any evidence as to whether Administrative Code 5 27-375 is applicable to the subject building or if it is exempt from the -3- [* 5] code. Also, there is nothing in the record indicating the width of the subject stairway. In addition, the complete Verified Bill of Particulars was not attached to the motion. Accordingly, there are insufficient facts for this Court to decide the motion. CONCLUSION Accordingly, it is ORDERED that the defendant 140 E. 2Vh Street Owners C o p s motion for summary judgment is denied without prejudice with leave to renew this motion upon providing the absent factual information and missing papers. I Dated: August 9,20 13 ENTER: AUG 13 2015 COUNTY CLERK S OFFICE NEW YORK -r 2 k$ ~ i. Page 2 of the Verified Bill of Particulars was omitted. -4- s.3,

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