Gluck v New York City Hous. Auth.

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Gluck v New York City Hous. Auth. 2020 NY Slip Op 35388(U) December 14, 2020 Supreme Court, Kings County Docket Number: Index No. 513497/2017 Judge: Carl J. Landicino 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. INDEX NO. 513497/2017 FILED: KINGS COUNTY CLERK 01/04/2021 04:20 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 01/04/2021 tan lAS Term Part 81 of the Supreme Count of the State of ew Yo k held in and for the ounty of Kingst at the Courthouse; at Civic Center, Brooklyn, New York, on the 14th d.ay f ecember, 2020. 1 PRE SENT: HO .CARLJ.L Justice. ------- ---- ------------------- ~- X MOSES GLUCK, h1d x No.: 513497/2017 PlalnJiff. - against~ E YORK CITY HOU G AUIBORITY Motion - equence #3 Defendo:nJs. - --- -- -- -- -- -- ~- -- --- -- -- ... -- .... -!!I! " '·x Recitation, as requuedl by CPLR2l19{a), oft e papen ,cons·dered in tbe review ofthjli motion: Pa~rs Nurn hered <NYSCEF) Notjce of Motion/Cro Mot ion and ffidavits (AWUlllat" on ) 1u1 xed ...... ~..................................... 39-5] pposing Affida i ( ffinn tions)............... ...... ..... .......... ........... 56 ).......ri••······ .. ··•·········•• •...•..•..•....•. 57-58 R pl Upon the foregoing papers, and after ,ora] arg-umentt the Court finds as foUows: The instant action re ults from an alleg d trip and full incident th t occurr don Augus125 2016. PlaintiffMoses luck {hereioofter"tl Piaint'ff' allegedly injured him alk"ng up exmrior lairs atth premises kn Pre mi sesH). A part ofhl WD. f aftertrippi:ng,. whit 22S Divi ionAvenu in Brook.Iyo, ,ew York ,(th otice of Clrum the Plaintiff alleges that Defendant New York City Housing Authority (hereinafter th uDefendant11 was n ~gem in as much as •[s]aid teps were of such an unusually low height. and were of such a uniform color as to make the unusual]y low heigh1 differential d"ffi ult to discern, constitutmg a trap and a nare. The Defendant n · moves (motion sequ nee #J) for an order pursuan to I PLR 3212 granting summary judgment and di missing the complaint. Th Defendant contends that summary judgment shou]d be granted as th hav actual or constm .ti [* 1] t ps at issue were not inherently dangerous, and that the Defendant did not notice of any alleged de ective c.ondition in relation to the stairweH. Th 1 of 4 O INDEX NO. 513497/2017 FILED: KINGS COUNTY CLERK 01/04/2021 04:20 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 01/04/2021 Plaintiffopposes the mo ion and argues that L hould bed nied. Specifically, the Plaintiff con e d that th Defendant has failed to meet its prima/acie urden in as much as th. D fend!ant has failed o Rhow whether the steps at i u. w re d signed in a safe manner and whether d fendant created the dang rou cond·iron or had actual or ,con trucnve notic of its e istence. It has Ion been establ"'shed that [s]ununary judgment is a drastic remedy that depri a litigant of his or her day in court. and it 'shou d nly be employed wh: nth 11e is no doubt as to th ab. ence of triable issue of ma;erial fact..,. Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005 citing Andr v. Pomeroy. 35 Y2d 361~ 364, 3,62 . .Y..2d 131. 320 .E.ld 853 £1974). The proponent for th IJl11JlUUYjudgm ntm makeaprimafacie b:o 'ngofen.titlem n toju gmentasamatterofla • ten ering sufficient evid noe to demonstrat a: noe of any material i u s of fact See Sheppard~ Mohl y v. King, l 0 AD3d 7O~ 74 [2d Dept 2004 , citing Alvarez v. Prospe ·t Hospital, 68 NY2d320, 324 508 .Y.S.2d 923 01 .E.2d 572 [l 986]; Win grad v. New York Univ. Med. Ctr., 64 NY2d 85 • 853 487 .Y.S.2dl 316 476 . .2d 642 [I 985]. Once a mo ing part}' has made aprimafa I bowing of its entitlem .nt to summary judgment, ''th burden shifts to the opposing party to produce • videntiary prooHn admissible form suffic·ent to stablish the existence of material issues of fact which require atria f the action.u Garnham & Han R,eal Estate Broker. Oppenh oner. 148 AD2d 49 , [2d Dep 19&9]. Failure to make SGCh ash require denial of th m i n regardJess of th ng uffi iency of th oppo in papers. See Demshick . mty. Hous. Mgmt. Corp., 34 AD3d 518, 520, 824 .Y.S.2d 166 168 [2d Dept 2006]; see Menzel v. Plot nick. 202 AD2d 558~S 8-559, 610 N. V.S.2d SO [2d Dept, 1994]. GeneraUy in a trip and fall action, a defen t makes a prima fa •I to .. u:mmay judgment by pre ·nting sufficient e id ce lo show that th n ho wing of its enti itn r reated no had ment rua1 or con tructive notioe of lhe allegedly dangerou cond"tion. See Hackbarth . McDvnalds ,· orp.~ 31 AD3d 498, 499., 8] 8 N. Y.S 2d 578 2d Dept 2006],· urti.i v Dayton Beach Park No. I Corp.• 23 AD3d Sl l, 512 [2d Dept 2005]. However ·~(w]hile a andowner has a duty to maintain its premi e in a 2 [* 2] 2 of 4 INDEX NO. 513497/2017 FILED: KINGS COUNTY CLERK 01/04/2021 04:20 PM NYSCEF . ' .DOC. NO. 63 RECEIVED NYSCEF: 01/04/2021 reasonably safemanner(see Basso . Miller. 40 .Y.2d233, 241 386 .Y..2d 564 352 N.E.2d 868) a.landowner has no,du to,protect or warn against an open and obviotei,con.di ·on that. is no inherently dangerows. ' el on . 40-0 I . lJl~d. Corp. t 95 ADJ d BS l 852, 943 .Y. .2d 216. 217 [2d. Dept 20l2]; see also Dillman v. City Cellar Winet 123 AD3d 758, 758; 996 N.Y..2d. 545 [2d Dept 2014]. Turning to th merits of the instant motion the Court finds that the D fendant has not met its prima faci,e burden. In upport ofi ts app1ic-ation th D_t; ndant primarily reJie on th deposition of the Plaintiff and th affida it of Jeffrey J. chwalje P.' . The Plaiintiff state that he was walk· ng up tke ti t step owsid - ,o f th Premises. He stated that [t]h re as a lip coming out of lhe tep an my sh got caught und m th tih _ ip," (See Defendant Motion, Exhibit F ~ Page 20). During his statutory (50 9 h) hearing, when asked whether the steps matched the same c-0lor of the area imm. diately befor,e the steps that lead to th teps~ he answered 0 (y]eah. (S o,f hi affidavit. Jeff11 y J. Schwalje, P.E. tat subject tair w Defendant's Motion, Exhibit B, Page 22) As part that h tnspected the stairs and c n ]udes that ' [t]h . I d ·gn~ com.struc ed and Jrin.tained. Mr. chwalje also fated 1hat [t]here i no code ·olation relating m the sub·eel in e tre 4 two riser step arrangem · t. n ( ee Defendant s Motion, Exhibit ''H,. Paragraphs 20 and 27). Howev r, the affidavit from Mr hwalje fails to sta e what code applie to uch stairs, and how these stair purported]ycomply w·th it. Mor over, whi e Mr. Schwalje does state that he was retained to inspect th tairs and that he based his ooncl usion on the site inspection conducted, h does ao,t tate when h •. l pected the smirs or that th coodmon as th we :tairs I in he same nth · date ,o f the oocummce. Furthe: • he did not point to any appli.cah1 code or regufatioru that would upport his conclusion and does not addre tho Bill of Particulars.• e Calderon v. 88-16 N. Blvd, U 11 tlected in the Plaintiffs , 135 AD3d 681,683 24 N.Y.S.3d 135, 136 [2d Dept 2016]. "[W]h thera dangerous ordefectiv condition exists ... is gen r Uy a question of fact forthejw-y. • Burch 11. Viii. ofHempstead B9 AD d 778, 779 32 .Y.S.Jd 247 248 [2d Dept. 20 6], quolingTrincere "· ly. of, uffolk, 90 .Y.2d 976 688, E.2dl489' [1997]. Th affidavit of th d 6 ndaats1 expert was pecu.lati ourt finds that '(t]h co · lusory and lacked a.proper foundation. ~as v. Cty. o/Na ·sau 16 AD3d 1052. 1053. 87 N.Y .. d 310, 3 ]2 [2d Dept 2018 . [* 3] 3 of 4 INDEX NO. 513497/2017 FILED: KINGS COUNTY CLERK 01/04/2021 04:20 PM . NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 01/04/2021 The Coun al finds that the Defendant d not adequately add.re th issues raised by the Plaintiff; llia:t th stair in question posed a hazard gi en their wrifonnity of c 1 r. . e Rn .s v_ Bretton' 'n, Inc.~ 151 AD3d 774 77 • 5 .Y. -Jd 17 419 [2d v. Pulte Homes of ew York. LLC. 81 AD3d 690 691 916 pt 2017]; Gubitrui .Y.S.2d 51 6 [2d Dept 20 1 . The color 1 and position o ~a st p an create optical confusi n. , ee Buonchristiarw v, Fordham Univ., 146 A.D.3d 71] [1 st Dept 20 I 7]. The ourt believes that Masker v. Smith, NY Slip Op O I ~ 2020 NY App. Div. Lexis 6739~[2d Dep 2020] is di tinguishable with this matter. In thi matt he had not rem bered being at the premi unifonn. See Math i prev· oust t the Plaintiff stated that and that the col · r or the stairway was . Hum Country Furniture, In .• 140 AD3d 713, 714 30 .Y. Jd 883 [2d Dept 2016]. Moreover, th fact that a hazard may b pen and obviou..,;; doe not m an thait a and.owner cannot be found ncgli9ent, and may merely relnt th PJaindff's comparativ negligence. See Cupo v. Karfankel 1 AD d 48, 52, 767 .Y.S.2d 40 43 (2d Dept 2003]. fim]ly, th digital unages provided by the Defendan also upport the Plaintiff all ptions. Since th Defl ndants fai ed to meet th u.fficiency of the Plaintiffs opposi f on papers. ar prima fa.cie burd n w . n ed no consider th. Winegradl'. New York Uni'v. Med Ctr., 64 N.Y.2d 851, 853~ 476 N. -.2d · 42 643 i 1985]· Ortiz v. Town ofIslip. 175 AD3d 6 9 700t 107 .Y.S.Jd.394, •J 395 [2d Dept 2019]. Based on. th foregom:g, it .s hereby ORD D as follows: --.. :, Th modon by the Defendant (moti n quenoe #3) is dcni d. The fi reg ing constitutes the Decision and Order of the Court. EN R: 4 [* 4] 4 of 4 ,. 'r

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