Collins v Comilloni

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Collins v Comilloni 2020 NY Slip Op 34985(U) January 27, 2020 Supreme Court, Westchester County Docket Number: Index No. 50256/2018 Judge: James W. Hubert 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: WESTCHESTER COUNTY CLERK 01/28/2020 11:18 AM NYSCEF DOC. NO. 43 INDEX NO. 50256/2018 RECEIVED NYSCEF: 01/27/2020 '\ SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF WESTCHESTER --------------------------··-···-----------------------------------··-·---x JASON COLLINS, Plaintiff, DECISION & ORDERS -against- Index No. 50256/2018 'DONALD COMILLONI·and MARILYN BRENNAN, a/k/a MAR[L YN COMILLONJ Motion Seq.' No. I Defendants. --------,-. __. ----------------·------------------------------------------x Hubert, J.S.C. ) Before the Court is a motion pursuant to CPLR §3212 filed by the above-captioned defendants (Defendants) seeking summary judgment against the plaintiff Jason Collins (Plaintiff) . dismissing the complai_nt on the grounds that no material issues of fact exist on the question of .,. ' ~ . . .Oefendants' negligence alleged to have caused injury to the Plaintiff. The Court has reviewed the submissions of the parties including the Affirmation in Support of the ~efendants' motion and -the exhibits annexed thereto; the PlaintifPs Affirmation in Opposition to the Defendants' motion and the exhibits annexed thereto; the Eye Witness Affidavit in Opposition, and the pcfendants' Reply Affirmation. After due consideration of the submissions, pleadings, legal arguments and relevant case law, the Court denies the Defendants' motion for summary ~udgment. The ·accident, a trip and fall by the Plaintiff as he was leaving the home of the Defendants located on Granite Springs Road in Granite Springs, occurred on November I, 2017 around 6: 15 p.m. Plaintifrs injuries included rupture of a tendon and ligaments of the right ankle as well as bone contusion and fracture. ,; [* 1] 1 of 6 ... FILED: WESTCHESTER COUNTY CLERK 01/28/2020 11:18 AM NYSCEF DOC. NO. 43 INDEX NO. 50256/2018 RECEIVED NYSCEF: 01/27/2020 The Plaintiff, accompanied by his wife Melissa Collins and a realtor, had gone to the Defendants' house on the date of the accident to look at it for possible purchase. As they left the home, they exited from the side of the ho~se to traverse along the exterior walk-way owned and maintained by the Defendants. It was dark at this time and there was no exterior lighting. As he stepped out of the house and onto the walkway, the Plaintiff stated at his deposition that his right foot rolled because the step was loose, wobbly and unstable. The Plaintiff, unable to maintain balance in the absence of a handrail, was unable to prevent himself from falling and sustaining injury. At the Plaintiffs . deposition, a photograph of the front of the house marked as "exhibit· A" was shown to him. He identified a "crack/gap in the step" which caused him to fall (Affirmation of the Defendants, 17). In her affidavit, Melissa Collins states that she returned to the property the following day to inspect jhe area where her husband fell. S~1e described the step as "not level" in addition to being "wobbly and loose." She further observed a "gap between the pavers." \ The deposition testimony of Defendant Donald Comilloni revealed that the Defendants became owners of the house in 1991. The house was "remodeled entirely in 1~99," and no repairs of the front of the house were made after that date. Mr. Comilloni further testified that there were no "incidents or accidents that dealt with the steps'' prior to the accident on November I; 2017. The Defendants were not at home during the Plaintiffs visit to the house on the evening t. of Noverpber 1, 2017 and did not witness the fall. The Defendants plead entitlement to summary judgment on two grounds: (1) no notice of . defect; and (2) any defect observed and alleged by the Plaintiff as causing the accident was "trivial" and thus not actionable. 2 [* 2] . I 2 of 6 FILED: WESTCHESTER COUNTY CLERK 01/28/2020 11:18 AM NYSCEF DOC. NO. 43 INDEX NO. 50256/2018 RECEIVED NYSCEF: 01/27/2020 It is well establish~d that summary judgment may be granted only when it is clear that no ! triable issue of fact exists. Alvarez v. Prospect Hospital, 68 N.Y.2d 320'. 508 N.Y.S.2d 923 (1986). T~e burden is upon the moving party to make a prima facie showing that he or she is entitled Jo summary judgment as a matter oflaw by presenting evidence in admissible form ' / demonstrating the absence of any material facts. Giufji-ida v. Citibank, 100 N.Y.2d 72, 760 . N.Y.S.2d397'(2003). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers. However, if the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party · opposing the niotion to "produce evidentiary proof in admissible form sufficient to require a trial of material q·uestions of fact on which he rests his claim." Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 (I 980). . , As numerous courts have held, a defendant property O"wner who is responsible for ''-. maintaining a premises and who moves for summary judgment in a slip and fall case involving the property has the initial burden of making a prima facie showing that it neither created the condition that caused the.accident nor had actual or constructive notice of it's existence for a sufficient length of time to discover and remedy it. See, e.g., Pryzywalney v. New York Tr. Auth., 69 A.D.3d 598, 892 N.Y.S.2d 181 (2d Dep't 201 O); Shehata v. City of New York, 128 A.D.3d 944, 946, ION. Y.S.3d 265 (2d Dep't 20 I 5). To provide constructive notice, a defect must be yisible and apB~rent and exist for sufficient time, pre-accident, to pennit discovery and remedy by the owner. P1yzywalney v. New York Tr. Auth., supra at 599. To meet its initial burden of showing lack of constructive notice, the defenqant must put forth some evidence of when the·area in question was last cleaned or ( 3 [* 3] 3 of 6 \ FILED: WESTCHESTER COUNTY CLERK 01/28/2020 11:18 AM NYSCEF DOC. NO. 43 INDEX NO. 50256/2018 RECEIVED NYSCEF: 01/27/2020 inspected in relation to the time the plaintiff fell. Id. . In the instant case, the photographs purporting to show the step(s) that caused the fall (exhibit A, Plaintiff's deposition) do show gaps between the "pavers," that make up the two tread steps leading immediately from the front door down to the walkway. In addition to the gap on the top step, there appears to be a crack as well. The gaps and the crack shown in the photographs may fairly be said to be "visible and apparent." As to the time of existence, the gaps appear to have been part of the step construction, in as much as the tread step gaps appear in two more tread steps positioned at intervals furthelalong I ' the walkway leading from the doorway. As stated by Mr. Comilloni at his deposition, no repairs of the front of the house were made after the date when repairs to the house were last done (1999). Thus presumably the stair tread configuration shown in the photographs existed for years prior to the accident. While it my be said that the Defendants did not regard the tread step condition or configuration as presenting a hazardous condition, it cannot be fairly stated that the configuration and condition of the tread would have never been noticed by the Defendants who would have traversed the walkway any time they exited or entered the front door. Thus it would appear that, at a minimum, there are issues of fact that cannot ]?e cast aside I as a matter of law. As a result the Defendants have failed to make a prima facie showing that they neither created the condition that caused the accident nor had actual or constructive notice of it's existence for a sufficient length of time to discover and remedy it. 'i As to whether the defects, identified in the photographs as accident causes, are "trivial," it cannot be said as a matter of law that they are. This remains a question of fact to be determined by a jury. 4 [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 01/28/2020 11:18 AM NYSCEF DOC. NO. 43 INDEX NO. 50256/2018 RECEIVED NYSCEF: 01/27/2020 A property owner may not be held liable for trivial defects that may not be properly regarded as traps or nuisances, but may instead be regarded as defects over which a pedestrian might merely stumble, trip or stub toes. Cabezas v. Ramos, 173 A.D.3d 1131, 101 N.Y.S.3d 643 (2d Dep't 2019). Nevertheless, in determining whether a defect is trivial, the court must examine all of the facts presented, such as the step(s) width, depth elevation irregularity, and appearance, as well as the time, place and circumstances of the injury. Id. A defendant seeking summa1y judgment on the basis that the alleged defect is trivial must make a prima facie showing that the defect is physically insignificant and that the surrounding circumstances do not increase the risk the defect poses before the burden shifts to the plaintiff. Supra, at 644. No measurements of the alleged defects have been presented by the Defendants as proof of triviality even though defect measurements are regarded as relevant facts on the issue. Nevertheless, measurements by themselves are typically not dispositive. See, Hutchinson v. Sheridan Hill House Co17J. 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802 (2015). However, in the instant matter, the surrounding circumstances may well be said to cast broader light on the issue. At the time of the accident, it is not disputed that when the Plaintiff and his family exited the residence in question it was dark outside. While there were exterior light fixtures to illuminate the stairs and pathway, the lights w·ere never turned on at any time so the area was fully dark. Supra, at 78. The stair treads were dark gray and not visible in significant detail. A rubber mat on the top step covered from view a significant part of the "gap" between the two step treads. No railing or other such item was present to guide ones step or provide stabilization. In addition, the location (the exit itself) may be regarded as a factor. The Plaintiff, his 5 [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 01/28/2020 11:18 AM NYSCEF DOC. NO. 43 INDEX NO. 50256/2018 RECEIVED NYSCEF: 01/27/2020 wife and child were leaving the house to return home and the fall took place as they exited the door. In their assessments of whether a trivial defect did or did not exist, courts have recognized that while exiting through a doorway, pedestrians are "naturally distracted from looking down at their feet" making a measurably small defect more dangerous than might otherwise be perceived. Id. Upon due consideration, the Court determines that the motion of the Defendants for summary judgment must be denied. The admissible evidence proffered by the Defendants does not meet the burden of proof necessary to make a prima facie showing of entitlement to summary judgment as a matter of law and fails to demonstrate the absence of any material issues of fact. As such, consideration of the Plaintiffs opposition is not necessary. Accordingly, it is hereby ORDERED, that the motion of the Defendants is denied, and it is further ORDERED, that the parties shall appear in the Settlement Conference Part, Courtroom 1600, on Tuesday, March 10, 2020 at 9:15 in the forenoon for pre-trial conference. The foregoing constitutes the decision and orders of the Court. Date: White Plains, New York January 27, 2020 J / Hon J runes W. l Justice Supreme Court 6 [* 6] ubert 6 of 6

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