Jablonsky v. Nerlich

• Decision Date: 30 December 2020
• Docket Number: Index No. 607917/15,2018–02411
• Citation: 189 A.D.3d 1561,139 N.Y.S.3d 364
• Court: New York Supreme Court — Appellate Division
• Parties: Joel JABLONSKY, respondent, v. Carl NERLICH, et al., appellants.

189 A.D.3d 1561

139 N.Y.S.3d 364

Joel JABLONSKY, respondent,

v.Carl NERLICH, et al., appellants.

2018–02411

Index No. 607917/15

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

Argued - March 26, 2020

December 30, 2020

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Louise M. Cherkis of counsel), for appellants.

Edelman, Krasin & Jaye, PLLC, Westbury, N.Y. (Kara M. Rosen of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered January 17, 2018. The order denied the defendants' motion for summary judgment dismissing the complaint, and denied the defendants' separate motion to vacate the note of issue and to compel the plaintiff to submit to an examination by a neurologist.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries allegedly sustained when he slipped and fell on ice in the driveway of a house owned by the defendants, where he resided as a tenant. Discovery deadlines were originally set in a preliminary conference order dated August 17, 2016, and then extended in several subsequent compliance conference orders, dated December 14, 2016, through April 26, 2017. The plaintiff's deposition took place on March 30, 2017, and the defendants' depositions occurred on April 10, 2017. The plaintiff appeared for an examination by a neurosurgeon on June 9, 2017.

On June 21, 2017, counsel for the parties signed a certification order, which provided that "subject to stipulation of this same date," the plaintiff was to file a note of issue by September 19, 2017. The accompanying stipulation provided that the plaintiff would appear for an orthopedic examination, and would provide responses to certain pending post-deposition disclosure demands, and that "to the extent plaintiff does not comply, ... plaintiff shall not be permitted to file his note of issue."

Subsequent to the execution of the stipulation, but prior to the plaintiff filing a note of issue and certificate of readiness, the defendants served an "Amended Notice of Physical Examination," seeking a medical examination of the plaintiff by a neurologist. The plaintiff's counsel sent a notice of rejection of that amended notice.

Thereafter, the defendants moved for summary judgment dismissing the complaint on the ground that they neither caused nor created, nor had actual or constructive notice, of the alleged hazardous condition which caused the plaintiff's fall. The plaintiff opposed the motion.

On September 15, 2017, the plaintiff filed a note of issue and certificate of readiness, which represented that the "Orthopedic IME [was] scheduled for September 19, 2017" and that discovery was otherwise complete. Thereafter, the defendants timely moved pursuant to 22 NYCRR 202.21(e) to vacate the note of issue and to compel the plaintiff to submit to an examination by a neurologist. The plaintiff opposed the motion.

In an order entered January 17, 2018, the Supreme Court denied the defendants' motion for summary judgment and denied the defendants' separate motion to vacate the note of issue and to compel the plaintiff to submit to an examination by a neurologist. The defendants appeal.

We agree with the Supreme Court's determination denying the defendants' motion for summary judgment dismissing the complaint. A defendant property owner who moves for summary judgment in a slip-and-fall case has the initial burden of showing "that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence" ( Parietti v. Wal–Mart Stores, Inc., 29 N.Y.3d 1136, 1137, 61 N.Y.S.3d 523, 83 N.E.3d 853 ; see Arevalo v. Associated Supermarkets, Inc., 156 A.D.3d 852, 853, 65 N.Y.S.3d 750 ). Here, the defendants failed to establish, prima facie, that they did not have constructive notice of the alleged icy condition (see Torre v. Aspen Knolls Estates Home Owners Assn., Inc., 150 A.D.3d 789, 790, 54 N.Y.S.3d 84 ; South v. K–Mart Corp., 24 A.D.3d 748, 748, 807 N.Y.S.2d 133 ). The defendants' affidavits regarding the condition of their driveway at approximately 9:00 p.m. on the evening before the plaintiff's fall, reflecting that neither defendant "notice[d]" an icy condition or had any difficulty traversing the driveway, was insufficient to establish as a matter of law that the alleged injury-producing condition was not visible and apparent or did not exist for a sufficient amount of time for the defendants to correct it (see Baratta v. Eden Roc NY, LLC, 95 A.D.3d 802, 803, 943 N.Y.S.2d 230 ; see also Ghent v. Santiago, 173 A.D.3d 693, 694–695, 102 N.Y.S.3d 100 ).

The defendants' remaining contentions likewise fail to demonstrate their entitlement to summary judgment on the issue of constructive notice, as they...