Mulligan v. R & D Props. of N.Y. Inc., 525854

• Decision Date: 14 June 2018
• Docket Number: 525854
• Citation: 162 A.D.3d 1301,79 N.Y.S.3d 692
• Parties: Mary MULLIGAN, et al., Respondents, v. R & D PROPERTIES OF NEW YORK INC., Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1301

79 N.Y.S.3d 692

Mary MULLIGAN, et al., Respondents,

v.R & D PROPERTIES OF NEW YORK INC., Appellant.

525854

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 2, 2018

Decided and Entered: June 14, 2018

Penino & Moynihan, LLP, White Plains (Henry L. Liao of counsel), for appellant.

Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for respondents.

Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from an order of the Supreme Court (Gilpatric, J.), entered August 21, 2017 in Ulster County, which denied defendant's motion for summary judgment dismissing the complaint.

In June 2014, while working as a mail carrier, plaintiff Mary Mulligan allegedly slipped as she was descending the final step on an exterior staircase leading from defendant's commercial property and fractured her right knee. Thereafter, Mulligan and her husband, derivatively, commenced this negligence action alleging that her injuries were caused by defendant's failure to construct and maintain the staircase in a reasonably safe manner. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court denied the motion, and defendant now appeals.

We affirm. Ordinarily, to establish prima facie entitlement to summary judgment dismissing the complaint, a property owner bears the burden of demonstrating that it maintained the premises in a reasonably safe condition and that it neither created nor had actual or constructive notice of the allegedly dangerous condition (see Carter v. State of New York, 119 A.D.3d 1198, 1199, 990 N.Y.S.2d 333 [2014] ; Signorelli v. Troy Lodge # 141 Benevolent & Protective Order of Elks, 108 A.D.3d 831, 831, 969 N.Y.S.2d 216 [2013] ). However, a defendant can also demonstrate "entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation" ( Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 [2013] ; see Brumm v. St. Paul's Evangelical Lutheran Church, 143 A.D.3d 1224, 1227, 41 N.Y.S.3d 559 [2016] ; Pascucci v. MPM Real Estate, LLC, 128 A.D.3d 1206, 1206, 9 N.Y.S.3d 697 [2015] ). A plaintiff can establish proximate cause solely through circumstantial evidence, so long as that circumstantial proof "renders a defendant's negligence the more likely cause of an accident than other potential causes" ( Pascucci v. MPM Real Estate, LLC, 128 A.D.3d at 1206, 9 N.Y.S.3d 697 ; see Gayle v. City of New York, 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900, 703 N.E.2d 758 [1998] ). "The proof must render other causes sufficiently remote such that the jury can base its verdict on logical inferences drawn from the evidence, not merely on speculation" ( Timmins v. Benjamin, 77 A.D.3d 1254, 1256, 910 N.Y.S.2d 584 [2010] [citation omitted]; see Gayle v. City of New York, 92 N.Y.2d at 937, 680 N.Y.S.2d 900, 703 N.E.2d 758 ; Pascucci v. MPM Real Estate, LLC, 128 A.D.3d at 1206–1207, 9 N.Y.S.3d 697 ).

Here, defendant failed to proffer sufficient evidence to establish as a matter of law that it constructed and maintained the stairs in a reasonably safe condition (see Carter v. State of New York, 119 A.D.3d at 1200–1201, 990 N.Y.S.2d 333 ; Romanowski v. Yahr, 5 A.D.3d 985, 986, 773 N.Y.S.2d 922 [2004] ; Feldman v. Dombrowsky, 288 A.D.2d 605, 606, 732 N.Y.S.2d 467 [2001] ; Wilson v. Proctors Theater & Arts Ctr. & Theater of Schenectady, 223 A.D.2d 826, 828, 636 N.Y.S.2d 456 [1996] ). Nevertheless, defendant met its initial burden of showing that Mulligan could not identify the cause of her fall without engaging in speculation (see Pascucci v. MPM Real Estate, LLC, 128 A.D.3d at 1207, 9 N.Y.S.3d 697 ; Henry v. Cobleskill–Richmondville Cent. School Dist., 13 A.D.3d 968, 970, 787 N.Y.S.2d 449 [2004] ). In that regard, defendant relied on Mulligan's deposition testimony, in which she acknowledged that she had traversed the stairs nearly daily without incident since their construction several months earlier and that, although the steps were "covered in water," she could not "honestly say what caused [her] to slip." This testimony satisfied defendant's prima facie burden of showing that plaintiffs could not establish proximate cause (see Pascucci v. MPM Real Estate, LLC, 128 A.D.3d at 1207, 9 N.Y.S.3d 697 ; Henry v. Cobleskill–Richmondville Cent. School Dist., 13 A.D.3d at 970, 787 N.Y.S.2d 449 ) and, thus, the burden shifted to plaintiffs to raise a triable issue of fact on that issue (see Macri v. Smith, 12 A.D.3d 896, 897, 784 N.Y.S.2d 734 [2004] ).

In opposition, plaintiffs submitted the expert affidavit of Alden Gaudreau,¹ a licensed mechanical engineer, as well as the affidavit of Mulligan. In his affidavit, Gaudreau identified several building code violations in the stairway design, including a riser that exceeded the maximum permissible height, a lack of required dimensional uniformity between the first and second tread, deficiencies in the design of the handrail and the absence of a slip resistant surface on the stair treads. Gaudreau stated that "[t]he stair tread and riser geometry, as well as the handrail features, were such that the stairway violated minimum building safety standards." He opined, to a reasonable degree of engineering certainty, that the stairs were in a "dangerous condition" at the time of Mulligan's accident, that the identified safety deficiencies were the proximate cause of her injuries and that, "[h]ad the ... stairway been designed and built considering even the minimum in safety, [the] incident most likely would not have occurred."...