Whyte v DN 63 Rockaway Parkway LLC

Annotate this Case

Download PDF

Whyte v DN 63 Rockaway Parkway LLC 2023 NY Slip Op 34374(U) November 28, 2023 Supreme Court, Kings County Docket Number: Index No. 514976/2019 Judge: Ingrid Joseph 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: KINGS COUNTY CLERK 12/13/2023 03:06 PM NYSCEF DOC. NO. 65 INDEX NO. 514976/2019 RECEIVED NYSCEF: 12/13/2023 of the Supreme Supreme Court Court of of Part 83 of IAS Part . At an lAS held in and for the rk held the State State of New York ofNewYo Adams Street, County of Street, Kings at 360 Adams of Kings County the 8'6 Brooklyn, day York, on the New York, Brooklyn, New 2023. of 0,/Qvew,/,fe VVlJVemL1PJC f 2023. of a~ . J.S.C. JOSEPH, J.S.C. PRESENT: : HON. INGRID JOSEPH, HON. INGRID PRESENT THE STATE SUPREME COURT COURT OF THE STATE OF SUPREME NEW YORK COUNTY COUNTY OF KINGS KINGS YORK NEW ______________________________________________________ ----------------J( . ___ . - ·----------------------------------------------------------------X . WHYTE, YVONNE J. WHYTE, YVONNE Plaintiff( Plaintiff(s) -against-against- Index 514976/20199 Index No: 514976/201 ORDER ORDER DN63 ROCKAWAYPARKWAYLLC KAWAYP ARKWAY LLC DN63ROC Defendant( Defendant(s) --------. ------------- -----. ------------- ---------. ------------X -----------~---------------------------7----------------------~------------J( herein: read herein: papers read e-filed papers following e-filed The following Annexed Affidavits Annexed Support/AffIdavits Notice of Motion! Affirmation in Support! Motion/AffIrmation Notice of .. ......... ly Exhibits Annexed/Reply . Exhibits Annexed/Rep Annexed/Exhibits Annexed AffIrmation Opposition/AffIdavits Annexed ........... , . ffidavits Annexed/Exhibits Affirmation in Opposition/A Nos.: NYSCEF NYSCEF Nos.: 63-64 48-53; 48-53; 63-64 58-59 58-59 CPLR §S moves (Motion. In this this matter, matter, Yvonne 1. Whyte ("Plaintiff') ) moves (Motion. Seq. 3) pursuant pursuant to CPLR Whyte ("Plaintiff" Yvonne J. Parkway Rockway Parkway DN 63 Rockway respect to DN with respect 3212 liability with of liability issue of the issue judgment on the summary judgment 3212 for summary there that there grounds that motion on the grounds opposed the motion LLC's ("Defendant") Defendant has opposed negligence. Defendant t") negligence. LLC's ("Defendan have caused may have negligence may are issues of material own negligence caused or Plaintiff'ss own that Plaintiff present and that material fact present issues of are injuries. her injuries. contributed to her contributed that occurred This action action arises arises out out of slip-and-fallll accident accident that occurred on September September 26, 2018, 2018, at of a slip-and-fa This in negligence in alleged negligence landlord for its alleged 3:00 a.m. in Plaintiffs Plaintiffs apartment apartment against against Defendant Defendant landlord 3:00 floor the floor collect on the ceiling arid collect leaking ceiling drip from a leaking water to drip allowing water and/or allowing permitting, and/or causing, permitting, ·causing, up woke up that on the date of Plaintiffs apartment. In states that date of of the accident, accident, she woke Plaintiff states EBT, Plaintiff her EBT, In her Plaintiffs apartment. of backwards. 1 hallway, she slipped to go to slipped and and fell backwards.' walking in the hallway, was walking bathroom and as she was to the bathroom to go lights, did not Plaintiff claims that she was straight ahead, that she did not turn tum on any lights, ahead, but that looking straight was looking claims that Plaintiff there was she fell, she realized that after because she was was familiar familiar with with the the path.22 Plaintiff Plaintiff states states that after she realized there was because testified Plaintiff testified wet.33 Plaintiff were wet. hair were aa lot on the nightgown, skin, and hair her nightgown, that her and that ground and the ground water.on of water lot of had that had hallway that the hallway ceiling in the the ceiling a crack in the that was acrack there was accident there the accident before the week before about a week that about (Yvonne J. Whyte Dep. Whyte Dep. (Yvonne (Yvonne Dep. Whyte Dep. (Yvonne J. Whyte (Yvonne J. 1. Whyte Dep. Whyte Dep. • 3 (Yvonne 1 I 22 7-8). lines 7-8). Page lines 13-15; 13-15; 55 lines Page 47 lines lines 1-18). lines 1-10; 48 lines Page 19-25; 47 lines 1-18). 46 lines 19-25; Page 46lines 5-24). lines 59 20-25; Page 55 lines 20-25; lines 5-24). lines Page 11 [* 1] 1 of 7 INDEX NO. 514976/2019 ..... ! FILED: KINGS COUNTY CLERK 12/13/2023 03:06 PM NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 12/13/2023 begun to leak leak and and that that her her daughter-in-law daughter-in-law called called the the landlord landlord to repair repair it.44 Plaintiff Plaintiff states states that that the begun portion crack eventually eventually developed developed into into a hole ceiling after after a repairman came and and cut cut out out a portion repairman came hole in the ceiling crack prior to leaking prior any leaking observe any not observe did not of that she did claims that Plaintiff claims repatched it.55 Plaintiff and repatched ceiling and of the ceiling photographs of going to bed bed around around midnight. midnight. 66 In support support of of her her motion, motion, Plaintiff Plaintiff submits submits photographs of the going Murray Kyianna Murray ceiling at the of the leak leak and and after after the accident accident and an affidavit affidavit of of Kyianna beginning of the beginning ceiling Lipskier Dovber Lipskier and Dovber her and between her messages between ("Murray"), submits text text messages who submits daughter-in-law, who her daughter-in-law, ("Murray"), her ("Lipskier"), the representative representative of of DN 63 Rockway Rockway Parkway Parkway LLC, LLC, wherein wherein Murray Murray notified notified ("Lipskier"), were leaking. Lipskier on September September 18, 2018 2018 that ceiling and and sink sink in the apartment apartment were leaking. that the ceiling Lipskier what including what present including are present In opposition, of fact fact are issues of material issues that material argues that Defendant argues opposition, Defendant caused the undetermined undetermined source source of of water water because because Plaintiff Plaintiff testified testified that that she slipped slipped on a wet wet caused night of the night was leaking surface but submitted evidence evidence .that that the ceiling ceiling was leaking on the of the accident. accident. not submitted has not but has surface was the credibility as she Defendant states that she was Plaintiffs credibility the Plaintiffs question the into question calls into only calls not only this not that this Defendant states witness to the the accident accident but but also makes makes Plaintiff's Plaintiff s res ispa ispa loquitur loquitur argument argument inapplicable. inapplicable. sole witness when the apartment Additionally, Defendant raises issues of of fact regarding lack of of lighting lighting in the apartment when regarding the lack raises issues Additionally, Defendant the causing negligent in the Plaintiff slipped, and that comparatively negligent causing of of the been comparatively have been may have Plaintiff may that Plaintiff Plaintiff slipped, accident by proceeding proceeding from from her her bedroom bedroom to the bathroom bathroom with with the the lights lights off. Defendant Defendant claims claims accident the ceiling, the leak assuming arguendo arguendo that Plaintiff put Defendant on on notice, of the leak in the ceiling, beforehand, of notice, beforehand, put Defendant that Plaintiff assuming leak up to and report of was no report Defendant diligently repaired ceiling and there of a further further leak there was repaired the ceiling Defendant diligently including the date date of of the the accident. accident. Defendant Defendant states states that that the submitted submitted text text messages messages show show that that including there were of the leak after after the repair done and and that that Plaintiff Plaintiff has has failed failed to submit submit was done repair was the leak reports of were no reports there Plaintiff submits evidence as to the repairman's support of of its opposition, opposition, Plaintiff submits negligence. In support repairman's negligence. evidence Lipskier's EBT, EBT, wherein wherein he testified testified that that Defendant Defendant retained retained a contractor contractor to perform perform repairs repairs on Lipskier's er testified the Plaintiffs Plaintiff s apartment apartment ceiling ceiling after after a leak leak occurred occurred on September September 18, 2018. 2018.77 Lipski Lipskier testified that after roof and that ceiling came came from from the roof and claims claims that after the through the ceiling leaking through was leaking which was water which that the water initial repair repair was was done done to stop stop the leak leak in the the apartment, apartment, Defendant Defendant arranged arranged for a roof roof contractor contraCtor initial of the the roof. 88 Lipskeir Lipskeir states states that that the roofer roofer was was called called to the repair of permanent repair perform a permanent to perform Lipskier Furthermore, Lipskier visit.99 Furthermore, location multiple leak did not stop after after his first visit. his first not stop the leak because the times because multiple times location (Yvonne J. 1. Whyte Whyte Dep. Dep. Page Page 68 lines lines 13-15). 13-15). (Yvonne (Yvonne 1. lines 20-25). 20-25). Page 68 lines Dep. Page Whyte Dep. J. Whyte (Yvonne 2-9). 74 lines 2-9). 21-25; 741ines lines 21-25; 66 (Yvonne (Yvonne 1. Page 73 lines Dep. Page Whyte Dep. J. Whyte 7-11). lines 7-11). 77 (Dovber Dep. Page 23-25; 65 lines lines 23-25; Page 57 lines Lipskier Dep. (Dovber Lipskier 8 (Dovber (Dovber Lipskier Lipskier Dep. Dep. Page Page 66 Jines lines 10-16; 10-16; 73 Jines lines 8-15). 8-15). 9 (Dovber (Dovber Lipskier Lipskier Dep. Dep. Page Page 67 lines lines 23-25; 23-25; 67 lines lines 2-7; 2-7; Page Page 72 lines lines 5-13; 5-13; 92 lines lines 7-14). 7-14). 4 4 55 2 [* 2] 2 of 7 'j i INDEX NO. 514976/2019 FILED: KINGS COUNTY CLERK 12/13/2023 03:06 PM NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 12/13/2023 plaintiffss of plaintiff ceiling of depicted the ceiling testified fairly and accurately accurately depicted submitted fairly photographs submitted that the photographs testified that incident. 10 the incident, after the right after apartment 10 and right leak and of the leak beginning of the beginning looked at the apartment as it looked make a must make motion must judgment motion It is well established established that "the proponent summary judgment of a summary proponent of that "the evidence sufficient evidence tendering sufficient law, tendering of law, prima matter of judgment as a matter entitlement to judgment of entitlement showing of facie showing prima facie NY2d 1062, to demonstrate demonstrate the absence absence of of fact" fact" (Ayotte (Ayotte v Gervasio, Gervasio, 81 NY2d issues of material issues of any material Buitriago, Zapata v Buitriago, 320, 324 [1986]; 1063 [1993], [1993], citing [1986]; Zapata NY2d 320, Hospital, 68 NY2d Prospect Hospital, Alvarez v Prospect citing Alvarez burden the burden made, the been made, 107 AD3d Once a prima demonstration has been facie demonstration prima facie 2013]). Once Dept 2013]). AD3d 977 [2d Dept admissible form, proof, in admissible evidentiary proof, shifts produce evidentiary motion to produce the motion opposing the party opposing shifts to the party action of the action trial of require a trial which require of fact which sufficient to establish establish the existence of of material issues of material issues the existence sufficient (Zuckerman v City City of [1980]). NY2d 557 [1980]). New York, 49 NY2d ofNew (Zuckerman there is any where there not be granted should not Summary judgment drastic remedy granted where which should remedy which judgment is a drastic Summary Nassau arguable (Elzer even arguable issue is even doubt (Elzer v Nassau where the issue issue or where triable issue of a triable existence of doubt as to the existence Ga/eta Dept 1984]; Galeta AD2d 649, [2d Dept County, 111 111 AD2d Parker, 99 AD2d Steven v Parker, Dept 1985]; Steven 212, [2d Dept AD2d 212, County, judgment summary judgment deciding a summary When deciding v New York News, 1983]). When Dept 1983]). 325, [1st Dept AD2d 325, News, Inc., 95 AD2d New York party non-moving party the non-moving favorable to the motion, Court must construe facts in the light light most most favorable must construe motion, the Court AD2d 610 [2d (Marine Midland Transmission Co., 168 AD2d Automatic Transmission Artie's Automatic Dino & Artie's NA. v Dino Bank N.A. Midland Bank (Marine Dept 1991]). Dept Whitemore, 172 AD2d 1991]). To be entitled entitled to summary summary AD2d 600 [2d Dept Rebecchi v Whitemore, Dept 1990]; Rebecchi absence establishing the absence of establishing burden of bear the burden judgment does not bear plaintiff does liability, a plaintiff of liability, issue of the issue judgment on the [2018]; ·. NY3d 312 [2018]; New York, 31 NY3d City of of his or her own own comparative comparative negligence (Rodriguez v City of New negligence (Rodriguez of Scharf, 2019]; Webb v Scharf, Dept 2019]; Higashi AD3d 788 [2d Dept Restaurant, LLC, 176 AD3d Scarsdale Restaurant, Higashi v M & R Scarsdale of law matter oflaw established as a matter liability is established 191 AD3d 2021]). When defendant's liability When a defendant's Dept 2021]). AD3d 1353 [4th Dept 191 such whether such and whether negligent and was negligent plaintiff was before whether the plaintiff determine whether must still determine jury must the jury trial, the before trial, injuries -- if plaintiffs injuries negligence substantial factor factor in causing if so, the comparative comparative fault of of causing plaintiffs was a substantial negligence was jury (Rodriguez each (Rodriguez at 324). apportioned by the jury then apportioned party is then each party multiple of a multiple owner of upon the owner Multiple Dwelling Dwelling Law Law 78 imposes imposes a nondelegable nondelegable duty upon Multiple including its roof. The repair, including good repair, dwelling premises in good such premises of such part of every part keeping every of keeping duty of dwelling the duty but the tenant this section; of this owner shall be responsible section; but tenant is provisions of with the provisions compliance with responsible for compliance owner that negligence or that assistance, or negligence willful act, assistance, also liable own willful tenant's own caused by the tenant's violation is caused if a violation liable if of any member of the tenant's guest (Multiple (Multiple Dwelling Dwelling Law Law 78[1]; 78[1]; Weiss household, or guest family, household, tenant's family, member of of 10 10 (Dovber Lipskier 97-99). Page 97-99). Dep. Page Lipskier Dep. (Dovber 3 [* 3] 3 of 7 FILED: KINGS COUNTY CLERK 12/13/2023 03:06 PM NYSCEF DOC. NO. 65 INDEX NO. 514976/2019 RECEIVED NYSCEF: 12/13/2023 A.D. 848 [2d Dept. 246 A.D. Novak, 246 Liddell v Novak, v City of 2005]; Liddell Dept. 2005]; AD3d 680 [2d Dept. York, 16 AD3d New York, ofNew 2013]). Dept. 2013]). Onetti v Gatsby Gatsby Condominium, Condominium, 111 111 AD3D AD3D 496 [1st Dept. 1936]; Onetti defective of a defective existence of establish the existence In a premises must establish plaintiff must case, the plaintiff liability case, premises liability defect of the defect notice of constructive notice condition actual or constructive had actual created or had either created defendant either the defendant that the and that condition and Pathmark Stores, 2014]; Caldwell Dept 2014]; (Ingram v Costco Costco Wholesale Wholesale Corp., 117 AD3d Caldwell v Pathmark AD3d 685 [2d Dept (Ingram Dept AD2d 431 [2d Dept 300 AD2d Foods, 300 Inc., 29 AD3d 8477 [2d Dept Crawford v Pick Quick Foods, Pick Quick 2006]; Crawford Dept 2006]; AD3d 84 exist must exist and it must apparent, and and apparent, visible and must be visible 2002]). defect must notice, a defect constructive notice, constitute constructive 2002]). To constitute time to discover for a sufficient sufficient length of time owners time discover and permit the owners accident to permit prior to the accident time prior length of Stone Kiskiel v Stone NY2d 836 [1986]; remedy (Gordon v American [1986]; Kiskiel History, 67 NY2d Natural History, ofNatural Museum of American Museum remedy it (Gordon condition is dangerous condition hazard or dangerous If a hazard 2015]). If Edge Dept 2015]). AD3d 672 [2d Dept Management, Inc., 129 AD3d Edge Management, Cupo at visitor of warn a visitor open and obvious, obvious, the owner of of the property duty to warn of the danger danger ((Cupo property has no duty the owner open Fishelson v 2019]; Fishelson Dept 2019]; AD3d 697 [2d Dept 51; Kastin Torah Institute, Institute, Inc., 170 AD3d Moshe Torah Kastin v Ohr Moshe dangerous that a dangerous proof that Kramer However, proof 2015]). However, Dept 2015]). AD3d 706 [2d Dept Properties, LLC, 133 AD3d Kramer Properties, condition is open open and obvious obvious does does not of liability liability against against a landowner landowner for the finding of preclude a finding not preclude condition plaintiffs the plaintiffs of the issue of the issue relevant to the failure condition but is relevant property in a safe condition the property maintain the failure to maintain 2014]; Dept 2014]; 924 [2d Dept AD3d 924 comparative (Cupo at 52; Russo Home Goods, Inc., 119 AD3d Russo v Home negligence (Cupo comparative negligence plaintiff does 201 0]). A plaintiff Dept 2010]). AD3d 634 [2d Dept Gradwolh v Stop Supermarket Co., LLC, 70 AD3d Shop Supermarket Stop & Shop Gradwolh of New York, 203 E.F.v City their fall (see of their not have (see E.F.v City o/New cause of the cause of the knowledge of personal knowledge have personal have to have Dept. AD3d 1527 [2d Dept. l 75 AD3d Auth., 175 AD3d City Hous. Auth., New York City Moiseyeva v New 2022; Moiseyeva Dept. 2022; AD3d 887 [2d Dept. of an cause of proximate cause the proximate was the 2015]). A determination determination that condition was dangerous condition defective or dangerous that a defective 2015]). inferred may be inferred and may causation and of causation evidence of accident direct evidence of direct absence of established in the absence can be established accident can AD3d Spagnoletti, 123 AD3d Buglione v Spagnoletti, from the facts and injury (Id.; Buglione underlying the injury circumstances underlying and circumstances 867 [2d Dept. 2014]). Dept. 2014]). question of Generally, exists is a question of fact for the condition exists defective condition dangerous or defective whether a dangerous Generally, whether Fisher v (see Trincere; law (see of law jury Trincere; Fisher matter of trivial as a matter demonstrated to be trivial defect is demonstrated unless the defect jury unless AD2d 358 Assoc., 300 AD2d A.LL. Assoc., Hymanson v A.L.L. JRMR 2009]; Hymanson Dept 2009]; 677 [2d Dept AD3d 677 Realty Corp., 63 AD3d JRMR Realty rest exclusively not rest does not trivial does condition is trivial of whether exclusively whether a condition determination of The determination 2002]). The Dept 2002]). [2d Dept of all examination of upon an examination made upon upon must be made but must inches but defect in inches the defect of the depth of dimension or depth upon the dimension of the appearance of and appearance irregularity and the facts presented, elevation, irregularity depth, elevation, width, depth, including the width, presented, including injury (Trincere defect and circumstance of the injury (Trincere at 978 quoting quoting circumstance of place and time, place with the time, along with defect along interpreted to been interpreted has been Circumstances has Caldwell v Village of NY 268 [1952]). Circumstances Island Park, 304 NY of Island Caldwell 4 [* 4] 4 of 7 INDEX NO. 514976/2019 FILED: KINGS COUNTY CLERK 12/13/2023 03:06 PM NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 12/13/2023 include, but but not not be limited limited to, the sufficiency sufficiency of of the lighting, lighting, the existence existence of of rain, rain, snow, snow, leaves leaves include, or debris debris (Fontana (Fontana v Winery, Winery, 84 AD3d AD3d 863 [2d Dept. Dept. 2011 2011]). The "trivial "trivial defect defect doctrine" doctrine" stands stands ]). The judgment for the proposition proposition that that a defendant defendant cannot cannot use use the doctrine doctrine to prevail prevail on a summary summary judgment motion solely solely on the basis of the dimensions dimensions of of an alleged alleged defect defect (Hutchinson (Hutchinson at 84). In deciding deciding basis of motion must, except triviality, a court whether defendant has has met of showing showing prima court must, except in prima facie triviality, burden of met its burden whether a defendant have might have plaintiff might the plaintiff whether the unusual circumstances, avoid avoid interjecting interjecting the question question of of whether unusual circumstances, avoided the accident accident simply simply by placing placing his feet elsewhere elsewhere (id). (id.). avoided The doctrine doctrine of of res ipsa ipsa loquitur loquitur applies applies when when a plaintiff plaintiff establishes: establishes: (1) the event event is of of The the kind kind that that ordinarily ordinarily does does not not occur occur in the absence absence of of someone's someone's negligence; negligence; (2) the event event was caused by an agency agency or instrumentality instrumentality within within the exclusive exclusive control control of of the defendant; defendant; and (3) the caused plaintiff part of accident was was not not due due to any any voluntary voluntary action action or contribution contribution on the part of the the plaintiff accident Medical Maimonides Medical Berlich v Maimonides (Corcoran v Banner 19 NY2d 425 [1967]; [1967]; Berlich Market, Inc., 19NY2d Super Market, Banner Super (Corcoran Center, 208 AD3d AD3d 1148 [2d Dept. Dept. 2022]; 2022]; Valdez v Upper Creston, Creston, LLC, LLC, 201 AD3d AD3d 560 [1st Center, 2022]). Notice Notice is inferred inferred when when the doctrine doctrine ofres of res ipsa ipsa loquitur loquitur applies applies (Valdez (Valdez at 561; Dept. 2022]). Ezzardv AD3d 159 [l5t [lst Dept. Dept. 2015]). 2015]). LLC, 129 AD3d Realty Co., LLC, Place Realty Riv: Place Ezzardv One E. Riv; judgment as a matter Here, the the court court finds finds that that Plaintiff Plaintiff has established established entitlement entitlement to judgment matter of of Here, maintain its theory of of premises liability, Defendant Defendant has a non-delegable duty to maintain non-delegable duty premises liability, Under a theory law. Under notice of received notice Defendant received that Defendant premises good condition, condition, including including the of undisputed that the roof. It is undisputed premises in good about September September 18, 18,2018, that an initial initial repair repair was performed performed on the ceiling, ceiling, and 2018, that the leak on or about that roofers roofers returned returned to the premises premises multiple multiple times times because because additional additional repairs repairs were were needed needed to that stop the the leak. Plaintiff Plaintiff was was able able to identify identify the location location of of the defect defect and and that that the the defect defect was a stop crack which which developed developed into into a hole hole in the ceiling ceiling of of her her hallway. hallway. She also also sufficiently sufficiently identified identified crack described the cause cause of of her her fall, to wit, as slipping slipping on water water that that had had collected collected on the floor floor due and described were which were records, which medical records, to the leak leak in the ceiling ceiling after after it rained. Plaintiff s medical Additionally, Plaintiff's rained. Additionally, her deposition, deposition, further further indicate indicate that that in describing describing how how she fell, she she told told doctors doctors that that she read at her slipped in her her apartment apartment due to rainwater rainwater leaking leaking onto onto the floor. flOOr.1111 In his EBT, EBT, Lipskier Lipskier testified testified slipped that the submitted submitted photographs photographs fairly and accurately accurately depicted depicted the defect defect in Plaintiff's Plaintiff s ceiling ceiling at that beginning of of the leak leak and after after the incident. incident. However, However, in its opposition, opposition, Defendant Defendant has failed failed the beginning submit sufficient sufficient evidence evidence showing showing that that it diligently diligently repaired repaired the the hole hole or inspection inspection records records to submit 11 II (Yvonne J. Whyte Whyte Dep. Dep. Page Page 105). (Yvonne 55 [* 5] 5 of 7 FILED: KINGS COUNTY CLERK 12/13/2023 03:06 PM NYSCEF DOC. NO. 65 INDEX NO. 514976/2019 RECEIVED NYSCEF: 12/13/2023 following following the repair repair demonstrating demonstrating that that prior prior to Plaintiffs Plaintiff s fall, that that the leak leak was fixed and that · there was no leak leak after after it was was repaired. repaired. extent that that Defendant Defendant argues argues that that Plaintiffs Plaintiffs actions actions were were a proximate cause of of her To the extent proximate cause own accident, accident, while while the comparative comparative fault of of each each party party is typically typically a question question for a jury jury a court court own may properly properly decide decide the issue issue as a matter matter of of law in instances instances where where there there are no specific specific factual factual allegations to support support it and and no valid valid line of of reasoning reasoning which which could could lead lead the jury Plaintiff jury to find Plaintiff allegations comparatively comparatively negligent negligent (see Shea Shea v New City Transit Transit Authority, Authority, 289 AD2d AD2d 558 [2d Dept. New York City 2001]; Perales Perales v City New York, 274 AD2d City of o/New AD2d 349 [1st Dept. Dept. 2000]). 2000]). In this this case, case, the Defendant Defendant does not allege proffer any evidence allege that that Plaintiff Plaintiff caused caused the hole, hole, nor nor did it proffer evidence to establish establish that that the water water on the floor floor was was there there as a result result of of some some other other defect defect within within Plaintiffs Plaintiff s control control or that that the area where where the crack crack or hole hole in the ceiling ceiling was located, located, was was distinguishable distinguishable from the area area where where Plaintiff Plaintiff slipped. slipped. Contrary Contrary to Defendant's Defendant's contention contention that that Plaintiffs Plaintiffs failure failure to tum tum on lights lights while while walking walking to the bathroom bathroom contributed contributed to her injuries, injuries, it was not Plaintiffs Plaintiffs burden burden to prove prove freedom providing evidence freedom from from negligence negligence by providing evidence that that she used used due care care in walking walking along along the hallway where where she fell (see Schindler Schindler v Welz & Zerweck, Zerweck, 145 ad 532 [2d Dept. Dept. 1911]; Marshall Marshall hallway v. Handler, AD2d 158, [1st Dept. Dept. 1997]). Rather, Rather, it was incumbent incumbent upon upon Defendant Defendant to v. Handler, 237 AD2d demonstrate plaintiff chose demonstrate that that there there was was an alternative, alternative, safer safer route route that that plaintiff chose not not to take, take, which which Defendant McGuire v Spence, NY 303 [1883]; Rose v Brown Brown & Defendant has failed failed to do (see McGuire Spence, 91 NY [1883]; Rose Williamson Williamson Tobacco Tobacco Corp., Corp., 53 AD3d AD3d 80 [1st Dept. Dept. 2008]). 2008]). Moreover, Moreover, Defendant's Defendant's contention contention that Plaintiff Plaintiff should should have have put hole before immaterial since since a bucket that put a bucket bucket under under the hole before bed bed is immaterial bucket properly repaired. would not not be necessary necessary if would if the leak leak was properly repaired. The The court court also also finds finds that that Defendant Defendant has failed failed to establish establish that that the doctrine doctrine of of res ipsa ipsa loquitur does does not not apply apply in this case. The fact that that both landlord and and the contractor contractor may have have loquitur both the landlord controlled plaintiffs ceiling does does not application of of the doctrine doctrine (see Wenzel Wenzel v All All City controlled plaintiffs ceiling not preclude preclude application Remodeling, Inc., 195 AD3d Remodeling, AD3d 496 [1st Dept. Dept. 2021]; 2021]; Orea Grea v NH NH Hotels Hotels USA, Inc., 187 AD3d AD3d [1st Dept, Dept, 2020]). 2020]). Defendant Defendant has failed failed to establish establish that that the water water in the hallway hallway came came from anywhere anywhere other than than the ceiling ceiling or was was the result result of of any other other defect. defect. Additionally, Additionally, contrary contrary to Defendant's Defendant's other contention, contention, it was was the dripping dripping water water that that caused caused Plaintiffs Plaintiffs fall, not the lighting lighting conditions conditions or where placed her where she placed her feet. The The maintenance maintenance of of the roof roof and ceiling ceiling were were in the exclusive exclusive control control of of Defendant Defendant and its agents agents and Defendant Defendant has failed failed to submit submit any evidence evidence demonstrating demonstrating that that it diligently diligently repaired repaired the hole hole or inspection inspection records records following following the repair repair showing showing that that it had 6 [* 6] 6 of 7 FILED: KINGS COUNTY CLERK 12/13/2023 03:06 PM NYSCEF DOC. NO. 65 INDEX NO. 514976/2019 RECEIVED NYSCEF: 12/13/2023 rained and that that there there was rained was no further further leakage. leakage. Furthermore, Furthermore, Defendant Defendant has failed failed to submit submit any evidence from the person person or entity entity that evidence that it hired hired to repair repair the roof roof establishing establishing what what work work was performed or claimed claimed to have have been performed been performed performed on the roof roof and ceiling. ceiling. Accordingly, it is hereby, hereby, Accordingly, ORDERED, that Plaintiffs motion ORDERED, that Plaintiff's motion for summary summary judgment judgment on the issue issue of of liability liability against against Defendant is granted. granted. Defendant This constitutes constitutes the decision of the court. court. This decision and order order of Hon. Hon. Ingrid Ingrid Jo ph J.S.C. Han. In In d Joseph Hon. Joseph Supreme Supreme ourt Justice 7 [* 7] 7 of 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.