Burrus v. Douglaston Realty Mgmt. Corp.

• Decision Date: 07 August 2019
• Docket Number: Index No. 14032/15,2018–10077
• Citation: 106 N.Y.S.3d 329,175 A.D.3d 461
• Parties: Scherris BURRUS, Respondent, v. DOUGLASTON REALTY MANAGEMENT CORP., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 461

106 N.Y.S.3d 329

Scherris BURRUS, Respondent,

v.DOUGLASTON REALTY MANAGEMENT CORP., et al., Appellants.

2018–10077

Index No. 14032/15

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

Argued—March 21, 2019

August 7, 2019

Weiner, Millo, Morgan & Bonanno, LLC, New York, N.Y. (Richard A. Walker of counsel), for appellants.

Steven Louros, New York, NY, for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

On December 2, 2014, the plaintiff, then a mail carrier employed by the United States Postal Service, slipped and fell while descending an interior set of stairs in a residential building that allegedly was owned and/or managed by the defendants. The plaintiff alleged that she slipped and fell due to a "wet and slippery substance" on the stairs. She commenced this personal injury action against the defendants. After joinder of issue and discovery, the defendants moved for summary judgment dismissing the complaint on the grounds that the plaintiff did not know what caused her to fall, that the defendants did not create any alleged wet or slippery condition on the stairs, and that they did not have notice of any alleged wet or slippery condition on the stairs. The Supreme Court denied the motion, and the defendants appeal.

Contrary to the defendants' contention, viewing the evidence in the light most favorable to the plaintiff as the nonmovant (see Bravo v. Vargas , 113 A.D.3d 579, 582, 978 N.Y.S.2d 307 ; Green v. Quincy Amusements, Inc. , 108 A.D.3d 591, 592, 969 N.Y.S.2d 489 ; Stukas v. Streiter , 83 A.D.3d 18, 22, 918 N.Y.S.2d 176 ), the evidence relied upon by the defendants in support of their motion, which included a transcript of the plaintiff's deposition, failed to establish the defendants' prima facie entitlement to judgment as a matter of law dismissing the complaint on the ground that the plaintiff was unable to identify the cause of her fall without speculation (see Flanagan v. Town of Huntington , 155 A.D.3d 1000, 1001, 64 N.Y.S.3d 590 ; Pajovic v. 94–06 34th Rd. Realty Co., LLC , 152 A.D.3d 781, 781, 59 N.Y.S.3d 138 ; Chilinski v. LMJ Contr., Inc. , 137 A.D.3d 1185, 1188–1189, 28 N.Y.S.3d 390 ; Drouillard v. Smarr , 136 A.D.3d 973, 973–974, 25 N.Y.S.3d 609 ; Severin v. T Burger, LLC , 127 A.D.3d 726, 726, 4 N.Y.S.3d 540 ; Martino v. Patmar Props., Inc. , 123 A.D.3d 890, 891, 999 N.Y.S.2d 449 ). The plaintiff's deposition testimony identified the cause of her fall as a wet substance on the stairs. The plaintiff's mere inability to identify the precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall (see Stancarone v. Sullivan , 167 A.D.3d 676, 678, 89 N.Y.S.3d 325 ; Kurtz v. Supercuts, Inc. , 127 A.D.3d 546, 8 N.Y.S.3d 60 ; Gotay v. New York City Hous. Auth. , 127 A.D.3d 693, 694–695, 7 N.Y.S.3d 311 ; Pol v. Gjonbalaj , 125 A.D.3d 955, 955–956, 5 N.Y.S.3d 186 ; Giuffrida v. Metro N. Commuter R.R. Co. , 279 A.D.2d 403, 404, 720 N.Y.S.2d 41 ).

Moreover, the evidence submitted in support of the defendants' motion, especially the deposition transcripts of the plaintiff and the superintendent of the subject building, revealed triable issues of fact as to whether the defendants created the alleged condition (see Lipani v. Hiawatha Elementary Sch. , 153 A.D.3d 1247, 1249–1250, 61 N.Y.S.3d 582 ; Ansari v. MB Hamptons, LLC , 137...