Dibartolomeo v. St. Peter's Hosp. of The City of Albany

• Citation: 73 A.D.3d 1326,901 N.Y.S.2d 389,2010 N.Y. Slip Op. 04100
• Parties: Ruth E. DiBARTOLOMEO, Individually and as Executor of the Estate of Amedeo DiBartolomeo, Deceased, Respondent,v.ST. PETER'S HOSPITAL OF the CITY OF ALBANY, Appellant.
• Decision Date: 13 May 2010
• Court: New York Supreme Court Appellate Division

73 A.D.3d 1326

901 N.Y.S.2d 389

2010 N.Y. Slip Op. 04100

Ruth E. DiBARTOLOMEO, Individually and as Executor of the Estate of Amedeo DiBartolomeo, Deceased, Respondent,

v.ST. PETER'S HOSPITAL OF the CITY OF ALBANY, Appellant.

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

May 13, 2010.

Thorn, Gershon, Tymann & Bonanni, Albany (Erin P. Mead of counsel), for appellant.Powers & Santola, L.L.P., Albany (Michael J. Hutter of counsel), for respondent.Before: PETERS, J.P., LAHTINEN, MALONE JR., STEIN and GARRY, JJ.STEIN, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered October 14, 2009 in Albany County, which denied defendant's motion for summary judgment dismissing the complaint.

Amedeo DiBartolomeo fell and struck his head while attempting to descend a temporary curb ramp placed on defendant's property as part of a construction project. As a result of the fall, DiBartolomeo suffered a fractured skull and died 20 days later from complications due to a intracerebral hemorrhage. Plaintiff, DiBartolomeo's wife, commenced this action based on premises liability, alleging that DiBartolomeo's injuries and resultant death were due to the defective condition of the ramp. Defendant moved for summary judgment dismissing the complaint, asserting that plaintiff was unable to establish that any negligence of defendant was the proximate cause of DiBartolomeo's injuries or that defendant had notice of the alleged defective condition. Supreme Court denied the motion, prompting this appeal.

We affirm. Defendant's sole contention on appeal is that it is entitled to summary judgment because plaintiff is unable to provide direct evidence of the proximate cause of DiBartolomeo's fall. We disagree. Unlike at trial, where plaintiff will bear the initial burden of establishing that defendant's negligence was the proximate cause of DiBartolomeo's fall, on this motion for summary judgment, defendant bears the initial burden of demonstrating its entitlement to judgment as a matter of law by proffering evidentiary proof in admissible form ( see Rothbard v. Colgate Univ., 235 A.D.2d 675, 678, 652 N.Y.S.2d 146 [1997]; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067–1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979] ). Only if that burden is met does the burden then shift to plaintiff to raise a triable issue of fact ( see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d at 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298).

Here, defendant supported its motion for summary judgment with an attorney's affidavit and the exhibits attached thereto. Inasmuch as defendant's attorney had no personal knowledge of the facts, Supreme Court correctly determined that her affidavit did not provide a factual basis for the relief sought. Furthermore, to the extent the exhibits submitted with such affidavit were in admissible form, they failed to establish that defendant maintained its property in a reasonably safe condition or that defendant did not create the allegedly dangerous condition or have actual or constructive knowledge thereof, as necessary to establish its entitlement to judgment as a matter of law ( see Montuori v. Town of Colonie, 277 A.D.2d 643, 644, 716 N.Y.S.2d 437 [2000] ). Likewise, defendant failed to demonstrate, as a matter of law, that the alleged condition of the ramp was not a proximate cause of the accident ( see Mazzio v. Highland Homeowners Assn. & Condos, 63 A.D.3d 1015, 1016, 883 N.Y.S.2d 59 [2009] ) or that DiBartolomeo's actions “were unforeseeable or of such a character as to constitute a superseding cause absolving [it] from potential liability” ( id.; see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 312, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ). Defendant's argument that it was not required to demonstrate those facts because plaintiff cannot establish the proximate cause of DiBartolomeo's accident is unavailing, as defendant's burden may not be met by pointing to gaps in plaintiff's proof ( see Dow v. Schenectady County Dept. of Social Servs., 46 A.D.3d 1084, 1084, 847 N.Y.S.2d 711 [2007]; Johnson City Cent. School Dist. v. Fidelity &...