Costen v. Cohen

• Decision Date: 28 January 2015
• Citation: 2015 N.Y. Slip Op. 00717,2 N.Y.S.3d 552,124 A.D.3d 819
• Parties: Helena COSTEN, appellant, v. Charles COHEN, et al., respondents.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 819

2 N.Y.S.3d 552

2015 N.Y. Slip Op. 00717

Helena COSTEN, appellant,

v.Charles COHEN, et al., respondents.

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

Jan. 28, 2015

Reversed.

Robert A. Flaster, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Beth S. Gereg], of counsel), for appellant.

Wilson, Elser, Moskowitz Edelman & Dicker LLP, New York, N.Y. (Joseph Laird of counsel), for respondents.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated December 18, 2013, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The plaintiff was shopping at a retail variety store owned and operated by the defendants. The plaintiff alleges that, after entering the store, she descended an internal staircase, which had “open risers” (open space between steps), to the lower level of the store in search of a particular pocketbook. Thereafter, unable to locate the desired item, she ascended the same internal staircase in order to exit the store. Before reaching the top, the plaintiff's left foot got “caught” in one of the open risers and she fell, sustaining injuries. Following the completion of discovery, the defendants moved for summary judgment. The Supreme Court granted the motion, and the plaintiff appeals.

The Supreme Court erred in granting the defendants' motion for summary judgment dismissing the complaint. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” ( Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226; see Lipari v. Town of Oyster Bay, 116 A.D.3d 927, 983 N.Y.S.2d 852; Miller v. Village of E. Hampton, 98 A.D.3d 1007, 951 N.Y.S.2d 171). In the instant matter, the defendants failed to establish their prima facie entitlement to judgment as a matter of law because they did not address specific claims in the plaintiff's supplemental bill of particulars that the subject staircase was in a hazardous condition due to conditions including the lack of uniformity of the open risers ( see ...