Gonzalez v. 104 Elliot Place Corp.

• Decision Date: 08 April 2022
• Docket Number: Motions Sequence No. 3,Index No. 507314/2018
• Citation: 2022 NY Slip Op 31844 (U)
• Parties: ALBERTO JOSE GONZALEZ, Plaintiff, v. 104 ELLIOT PLACE CORP., and 105 ELLIOT LLC, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 31844(U)

ALBERTO JOSE GONZALEZ, Plaintiff,
v.
104 ELLIOT PLACE CORP., and 105 ELLIOT LLC, Defendants.

Index No. 507314/2018, Motions Sequence No. #3

Supreme Court, Kings County

April 8, 2022

Unpublished Opinion

At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 8th day of April 2022.

PRESENT: HON. CARL J. LANDICINO, Justice.

DECISION AND ORDER

Carl J. Landicino, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered (NYSCEF)

Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed......................................................... 69-82, Opposing Affidavits (Affirmations)......................................................... 86-90, Reply Affidavits (Affirmations).............................................................. 91-92

After a review of the papers and oral argument, the Court finds as follows:

The instant action results from an alleged trip and fall accident that occurred on January 11, 2018. Plaintiff Alberto Jose Gonzalez (hereinafter the "Plaintiff') allegedly injured himself after tripping, while he was walking up interior stairs at the premises known as 105 Elliot Place, in Bronx, New York (hereinafter the "Premises"). The Premises are apparently owned by Defendant 105 ELLIOT LLC^[1] (hereinafter "Defendant").

The Plaintiff now moves (motion sequence #3) for an order pursuant to CPLR 3212 granting partial summary judgment on the issue of liability with respect to Defendant 105 ELLIOT LLC's negligence.

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The Plaintiff contends that the Defendant had a duty to maintain the Premises in a good state of repair and in safe condition, it breached mat duty and that Defendant's negligence was a proximate cause of Plaintiffs injuries. Further, the Plaintiff contends that the condition at issue was a defect as a matter of law. The Defendant opposes the motion. The Defendant contends that there is a material issue of fact as to whether it had actual or constructive notice of the defect. What is more, the Defendant contends that there is an issue of fact as to whether the alleged defect was the proximate cause of the Plaintiffs injuries.

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues of material fact." Kolivas v. Kirchoff, 14 A.D.3d 493 [2d Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 1341, 320 N.E.2d 853 [1974]. The proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N..E.2d 572 [1986], Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]. "In detennining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party." Adams v. Bruno, 124 A.D.3d 566, 566, 1 N.Y.S.3d 280, 281 [2d Dept 2015] citing Valentin v. Parish, 119 A.D.3d 854, 989 N.Y.S.2d 621 [2d Dept 2014]; Escobar v. Velez, 116 A.D.3d 735, 983 N.Y.S.2d 612 [2d Dept 2014].

Once a moving party has made a. prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" Garnham & Han Real Estate Brokers v Oppenheimer, 148 A.D.2d 493 [2d Dept 1989]. Failure to make such a showing requires

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denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610 N.Y.S.2d 50 [2d Dept 1994]. However, "[a] plaintiff is no longer required to show freedom from comparative fault in establishing his or hex prima facie case..." if they can show "...that the defendant's negligence was a proximate cause of the alleged injuries." Tsyganash v. Auto Mall Fleet Mgmt, Inc., 163 A.D.3d 1033, 1034, 83 N.Y.S.3d 74, 75 [2d Dept 2018]; Rodriguez v. City of New York, 31 N.Y.3d 312, 320, 101 N.E.3d 366, 371 [2018].

Generally, in an action for negligence, a plaintiff must prove that the defendant owed him or her a duty to use reasonable care, that the defendant breached that duty and that the plaintiffs injuries were caused by such breach. See Akins v. Glens Falls City School Dist, 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 648 [1981]. To impose liability upon a defendant for a plaintiffs fall, there must be evidence that a dangerous or defective condition existed, and that a defendant had actual or constructive notice of the condition and failed to remedy it within a reasonable time. See Christopher v. New York City Transit Authority, 300 A.D.2d 336, 752 N.Y.S.2d 76 [2d Dept 2002]; Brown-Phifer v. Cross County Mall Multiplex, 282 A.D.2d 564, 723 N.Y.S.2d 393 [2d Dept 2001]; Bonilla v. Starrett City at Spring Cr., 270 A.D.2d 377, 704 N.Y.S.2d 619 [2d Dept 2000]. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 647 [1986].

Turning to the merits of the motion made by the Plaintiff (motion sequence #3), the...