James v Kensington Assoc., LLC

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James v Kensington Assoc., LLC 2019 NY Slip Op 33599(U) December 9, 2019 Supreme Court, New York County Docket Number: 151262/2014 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 12/09/2019 02:50 PM NYSCEF DOC. NO. 231 INDEX NO. 151262/2014 RECEIVED NYSCEF: 12/09/2019 SUP~EME COURT OF THE STATE 9F NEW YORK NEW YORK COUNTY :, PRESENT: HON. ARLENE P. BLUTH PART IAS MOTION 32 Justice :1 ---------------------------------------------------------------------------------X INDEX NO. .\ LISA-ERIKA JAMES, Plaintiff, 151262/2014 MOTION DATE N/A, N/A MOTION SEQ. NO. 006 008 - v :jKENSINGTON ASSOCIATEs;t LLC,TRYAX REALTY MANAGEMENT, INC.,MICHAEL SCHMELZER, AND MIGUEL LEON DECISION + ORDER ON MOTION Defendant. :~ ---------------------------------.------'--,-------------------------~-------------X The following e-filed documents, listed by NYSCEF document number (Motion 006) 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 134, 137: 140, 146, 147, 187, 188, 189, 190, 191, 192, 193, 194, 195, ., 196, 197, 198, 199,200,201,217,218,219,220,228 ii • were read on this motion to/for : SUMMARY JUDGMENT The following e-filed documents, listed by NYSCEF document number (Motion 008) 148, 149, 150, 151, 152, 153, 154~155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186,202,203,204,205,206,207,208, 209,210,211,212,213,214,215,216,221,222,223,224,225,226,229 were read on this motion to/for : STRIKE- SPOLIATION .,,, ~1 Motion Sequence Nurribers~oo6 and 008 are consolidated foi di~position. The motion ~ '· ' ' (MS006) for summary judgm~nt ., by defendants is granted. ·The motion (MS008) to strike j . defendants' answer arising out of defendants' purported spoliation of certain evidence is denied. . "f ,, ' Background ,, . Plaintiff claims that she was hurt w~ile walking 1:1-P the stairs between the fourth and fifth floors in her apartment buildiJ:?-g. Def~ndants move for summary judgment dismissing this case . :1 on the ground that plaintiff n~~er actually fell. Defendants contend that after they told plaintiff i' that there was video footage ofthe incident showing that plaintiff did not fall, she changed her ij ·i 15126212014 JAMES, LISA-ERIKA vs. KENSINGTON ASSOCIATES, LLC Motion No. 006 008 1 of 6 Page 1of6 [*FILED: 2] NEW YORK COUNTY CLERK 12/09/2019 02:50 PM NYSCEF DOC. NO. 231 INDEX NO. 151262/2014 RECEIVED NYSCEF: 12/09/2019 version of the incident and now claims she slipped and was injured by shifting her weight onto her left side. Defendants also point out that the judge previously assigned to the case denied plaintiffs ' 1 . motion to preclude the use of the video based on defendant's purported failure to turn it over (NYSCEF Doc. No. 109). In her decision, Justice Kern noted that plaintiff had requested a video depicting her falling and "Allthat defendant has is a video of her walking on those steps that day and not falling" (id. at 18). Justice Kern also noted that "It is undisputed that on the day of the deposition, the defendant clearly informed plaintiff about the video that did exist, which is just a video of her walking up and down the stairs and not falling" (id. at 18-19): Defendants also attach an expert's affidavit which concludes thatthe alleged defect-a chip in the stairs-was not an actionable defect (NYSCEF Doc. No. 103). Defendants emphasize that after the alleged accident, plaintiff told an urgent care center that she hurt her knee after falling in the street. Plaintiff opposes the summary motion on the ground that its expert concludes that the chip in the stairs was a defect,that caused plaintiffs accident. The expert insists the chip was not a trivial defect and that it violated various statutes. Plaintiff also points to another expert's report which insists that the video cannot b~ relied upon because it was spliced. Plai11tiff also argues that the motion for summary judgment is untimely because it was filed more than 60 days after the note of issue was filed. Discussion To be entitled to the remedy of sum~ary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence 151262/2014 JAMES, LISA-ERIKA vs. KENSINGTON ASSOCIATES, LLC Motion No. 006 008 2 of 6 Page 2 of 6 [*FILED: 3] NEW YORK COUNTY CLERK 12/09/2019 02:50 PM NYSCEF DOC. NO. 231 INDEX NO. 151262/2014 RECEIVED NYSCEF: 12/09/2019 to demonstrate the absence of any material issues of fact from the case" (Winegradv New York Univ. Med. Ctr., 64 NY2d 85l, 853, 487 NYS2d 316 [1985]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency ofany opposing papers __ (id.). When deciding a summfily judgment motion, the court views the.alleged facts in the light ! . most favorable to the non-mo\ring party (Sosa v 46th St. Dev. LLC, 101AD3d490, 492, 955 NYS2d 589 [1st Dept 2012]):~! Once a movant meets its initial burden, the burden shifts to the ! opponent, who must then produce sufficient evidence to establish the existence of a triable issue :I of fact (Zuckerman v City ofi'(ew York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court's task in deciding a summary jrtdgment motion is to determine whether there are bonafide issues of !j i ' fact and not to delve into or r~solve issues of credibility (Vega v Restani,Constr, Corp., 18 NY3d . ~ 499, 505, 942 NYS2d 13 [20FD· If the court is unsure whether a triable issue of fact exists, or i can reasonably conclude that '(act is arguable, the motion must be ~enied (Trpnlone v Lac " d'Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 ;1 • NY2d 647, 760 NYS2d 96 [2003]). ~ "[W]hether a dangero~s or defective condition exists on the property of another so as to .j create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (Trincere v County ofSuffolk, 90 NY2d 97 6, 977, 665 NYS2d 615 [ 1997] [internal quotations a~d citation omitted]). "Of course, in some instances, the trivial nature of the defect may looni larger than another element: Not every_ injury allegedly caused by -, an elevated brick or slab need be submitted to a jury" (id.). A court must examine "the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along : with the time, place and circuffistance of the injury" (id. at 978). ' - ,: :l i I 151262/2014 JAMES, LISA-ERIKA vs. KENSINGTON ASSOCIATES, LLC '! Motion No. 006 008 3 of 6 Page 3 of 6 [*FILED: 4] NEW YORK COUNTY CLERK 12/09/2019 02:50 PM NYSCEF DOC. NO. 231 INDEX NO. 151262/2014 RECEIVED NYSCEF: 12/09/2019 As an initial matter, the· Court finds that defendants' motion was timely filed. This part's rules require the filing of dispositive motions to be within 120 days after th~ filing of the note of issue and defendants complied with ~hat directive. Setting aside the fact that plaintiff lived in the building and passed the alleged defect hundreds of times (which could be an independent basis to dismiss the case), the fact is that the video does not show a slip or fall of any kind on the day of the accident. It shows that plaintiff . ' " .has a pronounced limp as she, starts walking up the· stairs but nothing out of the ordinary occurs 1 between the fourth and fifth floors. While plaintiffs expert claims the ~ideo was spliced (NYSCEF Doc. No. 191), that does not necessarily create an issue of fact. Defendants admit that they provided video footage of when plaintiff appeared in the video from November 10-15, 2013 rather than hand over five days worth of footage. The assertion by plaintiffs expert that the time stamp on the video freezes at 20: 17 :40 and then skips to 20: 17 :42 (id. ~ 8) is inapposite because plaintiff claimed in ~er deposition that - she fell (NYSCEF Doc. No. 108 at 10). In fact, plaintiff confirms numerous times that she fell (id.). Even if the video froze for two seconds, it is not possible for plaintiff to fall (and suffer serious injuries) and get up within a second. 1 Plaintiffs subsequent effort to try and explain that she fell without actually falling does not create an issue of fact (see id. at 61-63 [plaintiff explaining how she fell but did not actually fall]). Instead, plaintiff admitted that no other part of her body came into contact with the steps besides her feet (id. at 64). That version of events is backed up by the video-that plaintiff just walked up the stairs without incident. The Court observes that plaintiffs expert (Dr. Marietta) apparently did not get the message that plaintiff did not actually fall; he concludes that "there were several contributing 151262/2014 JAMES, LISA-ERIKA vs. KENSINGTON ASSOCIATES, LLC Motion No. 006 008 4 of 6 Page 4 of.6 [*FILED: 5] NEW YORK COUNTY CLERK 12/09/2019 02:50 PM NYSCEF DOC. NO. 231 INDEX NO. 151262/2014 RECEIVED NYSCEF: 12/09/2019 factors to this/all including broken, damaged, and eroded treat nosing" (NYSCEF Doc. No. 190, 4j[ 74). A Court cannot find an issue of fact from an expert's report that is predicated on a version of events different from the account provided by plaintiff. In sum, plaintiff cannot create an issue of fact by changing her story within a deposition r from claiming that she fell to one in which she somehow hurt her left knee by walking up the stairs. It is also critical to point out that plaintiff claims she tore her left ACL. There is simply no way to conclude that a jury could reasonably find that plaintiff suffered such a severe injury when considering the video or plaintiffs deposition testimony. To be clear, the Court is not making a credibility determination. Rather, it is considering plaintiffs own words and the video and concluding that defendants are not negligent. The Court cannot ignore a video and plaintiffs testimony that, taken together, lead to one conclusion: that no accident actually occurred. Spoliation Motion The Court also denies plaintiffs motion for spoliation arising from the production of the aforementioned video. As an initial matter, Justice Kem already denied plaintiffs motion to I preclude the use of the video and to strike defendants' answer based on defendants' purported I failure to tum over the video (see NYSCEF Doc. No. 109). This Court cannot find that spoliation occurred where the, Court has already declined to impose penalties against defendants based on production of the same video. Moreover, the note of issue was filed in this case on August 13, 2018 and plaintiff waited until June 3, 2019 to make a discovery motion about spoliation. It is simply too late to complain about discovery; plaintiff had years to raise issues with the video but waited until after defendants made a motion for summary judgment to ask the Court to strike defendants' answeL 15126212014 JAMES, LISA-ERIKA vs. KENSINGTON ASSOCIATES,.LLC Motion No. 006 008 5 of 6 . Page 5 of 6 [*FILED: 6] NEW YORK COUNTY CLERK 12/09/2019 02:50 PM INDEX NO. 151262/2014 NYSCEF DOC. NO. 231 RECEIVED NYSCEF: 12/09/2019 And finally, defendants do not dispute that the video is spliced to reflect only plaintiffs appearances in the video., If plaintiff wanted to watch the 96 hours of footage, then she should . . have made the instant motion before filing the note of issue. Accordingly, it is hereby ORDERED that the motion (MS006) by defendants for summary judgment is granted, and the clerk is directed to enter judgment accordingly with costs upon presentation of proper papers therefor; and it is further ORDERED thatthe motion (MS008) by plaintiff to inter alia strike defendants' answer based on purported spoliation is denied; L?/1/1 CHECK ONE: : CASE DISPOSED GRANTED APPLICATION: CHECK IF APPROPRIATE: . D ~ DENIED SETTLE ORDER . ARLENE'P. BLUTH, J.S.C. v . NON-FINAL DISPOSITION · GR~NTED IN PART SUBMIT ORDER INCLUDES TRANSFER/REASSIGN . 151262/2014 JAMES, LISA-ERIKA vs. KENSINGTON ASSOCIATES, LLC Motion No. 006 008 6 of 6 FIDUCIARY APPOINTMENT. 0 D OTHER REFERENCE Page 6 of6

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