Angeles v Lutheran Med. Ctr.

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Angeles v Lutheran Med. Ctr. 2020 NY Slip Op 31633(U) May 29, 2020 Supreme Court, Kings County Docket Number: 509716/2018 Judge: Richard Velasquez 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] KINGS COUNTY CLERK 05/29/2020 03:50 P~ NYSCEF DOC. NO. 55 INDEX NO. 509716/2018 RECEIVED NYSCEF: 05/29/2020 ,• PRESENT: HON. RICHARD VELASQUEZ At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 29 1h day of MAY 2020. '' ,1,, ' ·. Justice. -----------------------------------X ,1 "-, ROSA ANGELES, .~·:' Plaintiff, Index No.: 509716/2018 -against- Decision and Order LUTHERAN MEDICAL CENTER, Defendants. -----------------------------------------X The following papers numbered 34 to 54 read on this motion: Papers Numbered Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed _ _ _ _ _ _ _ __ 34-48 Opposing Affidavits (Affirmations)_ _ _ _ _ _ _ __ 49-51 Reply Affidavits (Affirmations) _ _ _ _ _ _ _ _ __ 52-54 After oral argument and a review of the submissions herein, the Court finds as Follows: Defendants, LUTHERAN MEDICAL CENTER, (hereinafter "Defendants"), move •·, ,f,''}.1 pursuant to C.P.L.R. §3212, for an Order granting Defendants summary judgment and dismissing the Complaint of the Plaintiff because they did not create or have notice of any dangerous or defective condition. Plaintiff opposes the same. Page 1of4 I ·1•, ' ' ~ '' ,,1 I 1 of 4 : ', • : I ·, [*[FILED: 2] KINGS COUNTY CLERK 05/29/2020 03:50 INDEX NO. 509716/2018 P~ NYSCEF DOC. NO. 55 ·~· ' RECEIVED NYSCEF: 05/29/2020 :· -. . ...... /.'' ! • ARGUMENTS Defendant argues that they did not create or have prior notice of any dangerous or defective condition. ' , ' ' -~-',·' ,,.. , ·.:' i . . .• Plaintiff argues among other things issues of fact exist and the raised sidewalk flag was not a a de minimis non-actionable trivial defect. Plaintiff also argues the defendants failed to meet their burden. ANALYSIS It is well established that a moving party for summary judgment must make a prima . facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate \. , the absence of any material issue of fact. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the . party opposing the motion for summary judgment to produce evidentiary proof in \ admissible form to establish material issues of fact, which require a trail of the action .. t .\ Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Alvarez v. Prospect Hosp., 68 " N.Y.2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers. A motion for summary judgment will be granted "if, upon all the papers and proof .~~r •'· submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party". CPLR §3212 (b ).. 1:' ,1 ,, I l)'' The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id. \. ',t Section 7-210, which became effective September 14, 2003, shifted tort liability from the City to the commercial property owner for personal injuries proximately caused Page 2of4 '1, ,, ' J .. 2 of 4 [*[FILED: 3] KINGS COUNTY CLERK 05/29/2020 03:50 NYSCEF DOC. NO. 55 P~ INDEX NO. 509716/2018 RECEIVED NYSCEF: 05/29/2020 \, I, : I 'l : . I ' ' by the owner's failure to maintain the sidewalk abutting its premises in a reasonably safe ~. ' condition (see Vucetovic v. Epsom Downs, Inc., 10 NY3d 517, 521, 860 NYS2d 429, 890 NE2d 191; Fusco v. City of New York, 71AD3d1083, 1084, 900 NYS2d 81; Grierv. 35-. 63 Realty, Inc., 70 AD3d 772, 773, 895 NYS2d 149). "[T]he language of section 7-210 mirrors the duties and obligations of property owners with regard to sidewalks set forth in Administrative Code sections 19-152 and 16-123" (Vucetovic v. Epsom Downs, Inc., 10 :~ ' NY3d at 521, 860 NYS2d 429, 890 NE2d 191 ). However, Section 7-210 does not impose strict liability upon the property owner, and the injured party has the obligation to prove ., the elements of negligence to demonstrate that an owner is liable (see Martinez v. . . , , >1 Khaimov, 74 AD3d 1031, 1032-1033, 906 NYS2d 274). Thus, in support of a motion for summary judgment dismissing a cause of action pursuant to Section 7-210, the property owner has the initial burden of demonstrating, prima facie, that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (id.; see James v. Blackmon, 58 AD3d 808, 808-809, 872 NYS2d 179); quoting Harakidas v. City of New York, 86 AD3d 624, 626-27, 927 NYS2d 673, 676 (2011). ,, " ' ., \, In the present case, the defendants fail to meet their initial burden. To meet this I ~\ .. ~/ burden, a defendant is required to establish as a matter of law that it maintained the , premises in a reasonably safe condition and that it did not have actual or constructive notice of the defect. See Jackson v. Supermarkets Gen. Corp., 214 AD2d 650, 625 NYS2d 290 (1985); Grimes v. Golub Corp., 188 AD2d 721, 590 NYS2d 590 (Third Dept., 1993); Candela v City of New York, 8 AD3d 45, 778 NYS2d 31 (1st Dept., 2004). In the present case the defendants submit no proofs demonstrating that they neither created I I ' • J .·.?~·, nor had notice actual or constructive of the alleged defect other than a self-serving 1. i•, '·';' i..:...:.. 3 of 4 [*[FILED: 4] KINGS COUNTY CLERK 05/29/2020 03:50 INDEX NO. 509716/2018 P~ NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 05/29/2020 J,. .•• ,· I 'I ·\ j la '- . affidavit. Specifically, they do not submit any inspection logs or maintenance logs ~ I, I pertaining to the maintenance of the sidewalk area in front of their building. Moreover, I '1 . ' there is absolutely nothing submitted regarding the dimensions of the alleged defect by any party. Additionally, there are question of fact as to the exact cause of plaintiffs fall " · ,: · • '·'.·-'·"; .,l, •• (i.e. whether it was tripping on the defect or as a result of a condition the plaintiff suffers). ' . I ~ Accordingly, defendant's Motion for Summary Judgment is hereby denied as ': issues of fact exist, and such issues are for a jury to decide. \•~ ,1 • ' ~ ~ •• .. 1, . \\ ,' j' ,I ,• , .· u J ... ~ ; '· This constitutes the Decision/Order of the Court. Date: May 29, 2020 '... So Ordered Hon. Richard Velasquez HAY 29 2020 :'.• I' •I ._\:.·\.I Page 4 of 4 4 of 4

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