Karris v. Simon

• Decision Date: 03 December 2018
• Docket Number: Index No. 16-618172,Mot. Seq. No. 001-MD
• Citation: 2018 NY Slip Op 34279 (U)
• Parties: SARA KARRIS and GREGORY KARRIS, Plaintiffs, v. ANDREA SIMON, Defendant.
• Court: New York Supreme Court

2018 NY Slip Op 34279(U)

SARA KARRIS and GREGORY KARRIS, Plaintiffs,
v.
ANDREA SIMON, Defendant.

Index No. 16-618172, Mot. Seq. No. 001-MD

Supreme Court, Suffolk County

December 3, 2018

Unpublished Opinion

Motion Date 2-27-18

ADJ. DATE 4-10-18

KELLY, LUGLIO & ARCURI, LLP Attorney for Plaintiffs

LAW OFFICES OF KAREN L. LAWRENCE Attorney for Defendant

PRESENT: Hon. MARTHA L. LUFT Acting Justice Supreme Court

HON. MARTHA L. LUFT, ACTING JUSTICE

Upon the following papers read on this motion for partial summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, dated January 18, 2018: Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers by defendant, dated March 22. 2018 ___; Replying Affidavits and supporting papers by plaintiff, dated April 6. 2018: Other ___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that plaintiffs' motion for summary judgment on the issue of defendant's negligence is denied.

Plaintiff Sara Karris (hereinafter plaintiff) commenced this action to recover damages for personal injuries she allegedly sustained on October 31, 2015, when she slipped and fell while attempting to descend a four-step, wooden staircase at a residence known as 27 Lesley Lane, Old Bethpage, New York, which is owned by her aunt, defendant Andra Simon. Plaintiff s husband, Gregory Karris, brought a derivative claim for loss of services. By their bill of particulars, plaintiffs allege that the staircase constituted a dangerous condition on the premises, as the wooden treads "had a shiny, glossy and slippery finish." They also allege defendant was negligent, among other things, in failing to make the staircase "less slippery," in failing to provide "slip resistant material" on the steps, in failing to have adequate handrails and bannisters, and in failing to warn of the alleged dangerous

1

condition.

Plaintiffs now move for summary judgment in their favor on the issue of negligence, arguing that defendant and her husband created the alleged slippery condition on the staircase when they applied varnish to the wooden steps sometime in 1992 or 1993, and that defendant had actual knowledge of two other incidents where people slipped on the steps. Plaintiffs further argue that the steps were in a worn condition, and that defendant violated her duty of care as a landowner by failing to remedy such condition. Transcripts of the parties' deposition testimony are submitted in support of the motion. Defendant opposes the motion, arguing, in part, that there is no evidence that the staircase constituted a dangerous condition on the premises, and that plaintiff cannot identify what caused her foot to slip.

A party seeking summary judgment must make a prima facie showing that he or she is entitled to judgment as a matter of law by presenting sufficient admissible evidence showing that there is no triable issue of material fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 598 [1980]). If the moving party fails to meet this burden, summary judgment must be denied, regardless of the sufficiency of the opposing party's papers (see Winegradv New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316). If the moving party does establish entitlement to summary judgment, the burden shifts to the opposing party to present admissible, factual evidence showing that a genuine issue of material fact exists to defeat the motion (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 598).

In general, a landowner has a duty to maintain his or her property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Maheshwari v City of New York, 2 NY3d 288, 778 N.Y.S.2d 442 [2004]; Basso v Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 [1976]). The duty to keep premises in a reasonably safe condition is not dependent upon the plaintiffs status as an invitee, licensee or trespasser, or upon the status of the property as public or private (see Peralta v Henriquez, 100 N.Y.2d 139, 760 N.Y.S.2d 741 [2003]; Basso v Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564). Rather, a landowner "must act as a reasonable [person] in maintaining [his or her] property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564). However, a landowner is not an insurer of the safety of people on his or her property (see Maheshwari v City of New York, 2 NY3d 288, 778 N.Y.S.2d 442; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606 [1980]), and has no duty to warn or protect against an open or obvious condition which, as a matter of law, is not inherently...