Chavez v Prana Holding Co. LLC
Annotate this CaseDecided on October 7, 2020
Supreme Court, Bronx County
Jessica Chavez, Plaintiff,
against
Prana Holding Company LLC, and 2766 BARNES AVE LLC, Defendants.
300061/2015E
Adrian N. Armstrong, J.
Upon the foregoing papers, the motion of the plaintiff Jessica Chavez for partial summary judgment pursuant to CPLR 3212 on the issue of liability, is decided as follows:
Plaintiff Jessica Chavez seeks damages for personal injuries allegedly sustained on June 25, 2014, when she slipped and fell while descending a public interior staircase located at 2766 Barnes Avenue, Bronx, New York. Said premises was owned, maintained, managed, controlled, operated and occupied by defendants, Prana Holding Company, LLC and 2766 Barnes, Ave., LLC (hereinafter "Defendants").
In support of her motion, Plaintiff has provided a sworn affidavit stating that on June 25, 2014 while leaving her apartment and descending down a single flight of stairs, she was caused to slip and fall down the entire staircase to the lobby floor, becoming injured as a result. Plaintiff claims that while on the ground she was able to look up at the stairway and ascertain that the entire flight of steps was wet, looking like it had just been mopped. She further maintains that she also saw the building superintendent, Jesus Andino, at the top of the stairs, looking down at her. It is plaintiff's contention that, Jesus Andino created a dangerous and hazardous condition and for which no warning signs were posted.
Relevant to the instant motion as to the issue of liability, non-party witness Grace Lovaglio testified at her deposition, that she was a resident of 2766 Barnes Avenue, Bronx, New York and resided in apartment A4, on the first/ground floor of the building. On the date of the accident, June 25, 2014, she was alerted by the plaintiff's son that there was an emergency involving his mother. Ms. Lovaglio stated that she proceeded immediately to plaintiff's apartment located one flight up on the second floor. She noticed that the entire lobby floor and the staircase in question were wet, so she used the elevator to go to the second floor. She testified that there were no signs warning of wet floors in the lobby or near the stairway in question when she left her apartment and went to the plaintiff's aid. Further, she stated there were no signs warning of wet stairs at or near the top of the stairway. When she exited the elevator, Ms. Lovaglio stated she saw the building superintendent in the hallway standing outside the plaintiff's apartment. She did not see him mopping prior to being summoned to the plaintiff's apartment as she had not left her apartment that morning prior to going to the plaintiff's aid.
Plaintiff also relies on the deposition testimony of defendant non-party witness Maurice McKenzie who testified that he has been the managing member/owner of Park Avenue South Management since 1996. Park Avenue South Management is a business which manages properties. [*2]Mr. McKenzie further testified that he became the manager of 2766 Barnes Avenue, LLC on December 21, 2012. Part of his duties with regard to the subject premises was to oversee superintendent Jesus Andino. Mr. Andino was hired by the owner of the property. His duties included mopping the stairways, hallways and the lobby of 2766 Barnes Avenue. When mopping Mr. Andino was under instructions from the owner of the premises to place caution signs in the lobby and at each staircase, both at the bottom and top. The caution signs were to be placed by Mr. Andino where they were visible to the tenants. Mr. Andino was said to have followed a protocol of mopping in the mornings.
Defendants oppose the partial summary judgment motion by proffering an affirmation by its counsel contending that plaintiff's affidavit is self-serving, speculative and conclusory. Defendants' position is that plaintiff has failed to make a prima facie case of entitlement to partial summary judgment as plaintiff has supported her motion with a sworn affidavit and has not included a transcript of her deposition testimony. Defendants assert that plaintiff's self-serving affidavit conflicts with her deposition testimony. Defendants also contend that plaintiff's credibility should be left to a jury to determine. Additionally, defendants through counsel, contend that there is no direct evidence that defendants affirmatively created a dangerous condition.
In reply, plaintiff argues that in opposition to its motion, defendants offered only a speculative attorney's affirmation without any evidence in admissible form to support the existence of a question of fact defeating summary judgment on liability in plaintiff's favor.
A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary judgment, the court should interpret the evidence in a manner that most favors the opposing party (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept. 2013]).
To establish a prima facie case in a slip and fall, plaintiff must show that the defendant either created the dangerous condition or had actual or constructive knowledge of the hazard (Lemonda v Sutton, 268 AD2d 383 [2000]). In support of the instant motion as to the issue of liability, plaintiff submitted a fair amount of evidence, including affidavits and deposition testimony of non-parties. Here, the plaintiff's affidavit and deposition testimonies established its prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to establish that the defendants had created a dangerous condition by mopping, and whether the floor had remained wet for a period of time sufficient to give them constructive notice of a hazard (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Once plaintiff had established a prima facie case of negligence, it was defendants' obligation to submit evidentiary proof in admissible form raising triable issues of material fact in order to defeat the motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 427 N.Y.S.2d 595 [1980]). However, in this case, defendants' attorney's affirmation presented only unsubstantiated assertions and speculation that plaintiff may have breached a duty of care (Alvarez v Prospect Hospital, 68 NY2d 320, 327, 508 N.Y.S.2d 923 [1986]). The affirmation of defendants' attorney, who has no personal knowledge of facts asserted herein, is insufficient to raise a triable issue of fact with respect to whether defendants created a dangerous condition by mopping and not providing proper warnings to residents and guests at the subject premises. Moreover, even if this case did present an issue of comparative fault on plaintiff's part, plaintiff would not be required to [*3]make a prima facie showing that she was free from comparative fault in order to be awarded partial summary judgment (see Rodriguez v City of New York, 31 NY3d 312, 324-325, 76 N.Y.S.3d 898 [2018]). Therefore, defendants' submission has failed to meet their burden of providing a nonnegligent explanation for the plaintiff's accident, whereas the affidavit and deposition testimonies proffered by plaintiff are sufficient to establish as a matter of law that defendants were solely at fault.
Accordingly, it is hereby
ORDERED that plaintiff's motion for partial summary judgment is granted with regard to liability.
This is the Decision and Order of the Court.
Dated: October 7, 2020
_____________________________
Adrian Armstrong, A.J.S.C.
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