Martinez v Levites Realty Mgt., LLC
Annotate this CaseDecided on March 22, 2018
Supreme Court, Bronx County
Berky Martinez, Plaintiff,
against
Levites Realty Management, LLC, and Glovebox Realty Corp., Defendants.
23150/2012E
Counsel for plaintiff:
LaRock & Perez, LLP
(Dario Perez, Esq.)
Counsel for defendants:
Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C.
(Evan D. Yagerman, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 5 read on the below motion noticed on September 15, 2017 and duly submitted on the Part IA15 Motion calendar of November 30, 2017:
Papers Submitted Numbered
Defs.' Notice of Motion, Exhibits 1,2
Pl. Aff. In Opp., Exhibits 3,4
Defs.' Aff. in Reply 5
Upon the foregoing papers, the defendants Glovebox Realty Corp. and Levites Realty Management, LLC. ("Defendants") move for an order dismissing the plaintiff's complaint and granting Defendants' summary judgment pursuant to CPLR 3212. The plaintiff Berky Martinez ("Plaintiff") opposes the motion.
I. Background
This matter arises out of an alleged trip and fall accident that occurred in the lobby of Defendants' apartment building located at 2565 Grand Concourse in the Bronx, New York. Plaintiff testified that she was visiting a friend in the building, as she had done on two or three prior occasions. The apartment she was visiting was on the first floor on the right side of the building's entry door. As Plaintiff was walking down the hallway, she allegedly tripped and fell on a doorstop affixed to the floor, which she described as a "gold ball" that was about 2 ½ inches wide and 2 ½ inches tall. Defendants provide photographs of the doorstop that Plaintiff identified at her examination before trial. Defendants representative Barry Gavarin testified, [*2]among other things, that the building never received any prior complaints about this doorstop. Defendant's expert engineer, Scott E. Derector conducted a site inspection of the premises. In an affidavit, he states that (1) the doorstop was properly installed and violated no known applicable code or standard, (2) it provided a sufficient door-opening width and did not reduce the required width along the means of egress, (3) the subject area including the doorstop was properly maintained and constructed, and (4) the use of doorstops such as this one was commonplace and provided an effective means to protect separation wall from unwanted damage. Defendants assert that, in light of the foregoing evidence, they are entitled to summary judgment because this doorstop was open and obvious and not inherently dangerous.
In opposition to the motion, Plaintiff argues inter alia that Defendants failed to demonstrate prima facie that this defect was open and obvious, as the photographs as well as Plaintiff's testimony indicate that the doorstop was hard to see because it blended into the floor. Plaintiff also submits an affidavit from an expert engineer, Richard G. Berkenfeld, who opines that the appearance and placement of the doorstopper in the middle of the floor created a tripping hazard. Defendants' contentions in reply are addressed infra if necessary.
II. Standard of Review
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993]).
III. Applicable Law and Analysis
A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to third parties, the potential seriousness of the injury and the burden of avoiding the risk (see Broderick v. RY Management Co., Inc., 71 AD3d 144 [1st Dept. 2009]; citing Basso v. Miller, 40 NY2d 233, 241 [1976]). In this case, Defendants assert that they are entitled to summary judgment because the complained-of condition was open and obvious, readily observable, and not inherently dangerous. To be considered "open and obvious," a hazard must be of a nature that could not reasonably be overlooked by anyone in the area whose eyes were open, making a posted warning of the presence of the hazard superfluous (see Westbrook v. WR Activities-Cabrera Mkts., 5 AD3d 69 [1st Dept. 2004]). Even when a hazard is open and obvious, however, it "may be rendered a trap [*3]for the unwary where the condition is obscured or the plaintiff's attention is otherwise distracted (see Mauriello v. Port Auth. of NY and N.J., 8 AD3d 200 [1st Dept. 2004]). Whether a condition is open and obvious is generally a jury question, and a court should only resolve the issue as a matter of law when the facts compel such a conclusion, where the basis is clear and the evidence is undisputed (see Westbrook, supra, citing Tagle v. Jakob, 97 NY2d 165, 169 [2001]).
Furthermore, the open and obvious nature of a hazard would only determine the issue of breach of duty to warn, and does not dispose of a landowner's duty to maintain the premises in a safe condition (see Cohen v. Shopwell, Inc., 309 AD2d 560 [1st Dept. 2003]). "[A] finding of 'open and obvious' as to a hazardous condition is never fatal to a plaintiff's negligence claim. It is relevant only to plaintiff's comparative fault" (Saretsky v. 85 Kenmare Realty Corp., 85 AD3d 89 [1st Dept. 2011]). Nevertheless, a court is not precluded from granting summary judgment where the condition complained of is, as a matter of law, not inherently dangerous (see Boyd v. New York City Housing Auth., 105 AD3d 542 [1st Dept. 2013]). Accordingly, on a motion for summary judgment seeking dismissal on these grounds, a defendant landowner must establish that the hazard was both open and obvious, and not inherently dangerous. "In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property" (Id., citing Cupo v. Karfunkel, 1 AD3d 48, 52 [2d Dept. 2003] ). Finally, "whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case'" (see Powers v. 31 E. 31 LLC., 123 AD3d 421 [1st Dept. 2014], quoting Russo v. Home Goods, Inc., 119 AD3d 924, 925-926 [2nd Dept. 2014]).
In this matter, Defendant failed to carry its initial burden of demonstrating that the doorstop at issue was both open and obvious and not inherently dangerous. Plaintiff described the doorstop as a "steel ball, small ball, gold colored." Plaintiff testified that she had never seen the doorstop before, and "[t]he floor is kind of the same color as the ball. You can't tell from the ball or the floor." (Pl. EBT at 28). Photographs annexed to Defendants moving papers, notably the one marked as exhibit "C" at Plaintiff's deposition, demonstrate that the doorstop appears to blend in with the floor pattern, thus it is not readily visible or observable and may constitute a tripping hazard. Accordingly, Defendants failed to demonstrate that the condition is not actionable (see Mauriello v. Port Authority of New York and New Jersey, 8 AD3d 200 [1st Dept. 2004]; see also Saretsky v. 85 Kenmare Realty Corp., 85 AD3d 89, 92]; Drotar v. 60 Sweet Things, Inc., 106 AD3d 426, 427 [1st Dept. 2013]). The cases cited by Defendants all concern alleged hazards that were, as a matter of law, readily visible.
In addition, Defendants' expert does not specifically address whether the appearance of the doorstop complied with applicable building codes or standards (see generally Powers ex rel. Powers v. 31 E. 31 LLC., 24 NY3d 84, 92 [2014]). In any event, "compliance with regulations or a building code is not dispositive on the issue of [Defendants'] negligence" (Schneider v. Corporate Place, LLC., 149 AD3d 1503, 1505 [4th Dept. 2017]; see also Lugo by Lopez v. LJN Toys, Ltd., 146 AD2d 168, 171 [1st Dept. 1989], aff'd 75 NY2d 850 [1990][compliance with a statute may be evidence of due care but it does not preclude a finding of negligence]). Since the moving papers do not conclusively resolve the issue of whether the condition at issue was "open and obvious," Defendants' motion must be denied without consideration of Plaintiff's contentions in opposition papers (see Winegrad v. New York University Medical Center, 64 NY2d at 853).
IV. Conclusion
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment is denied.
This constitutes the Decision and Order of this Court.
Dated: March 22, 2018
Hon. Mary Ann Brigantti, J.S.C.
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