Martino v. Patmar Props., Inc.

• Decision Date: 17 December 2014
• Citation: 123 A.D.3d 890,999 N.Y.S.2d 449,2014 N.Y. Slip Op. 08815
• Parties: Robert R. MARTINO, etc., appellant, v. PATMAR PROPERTIES, INC., respondent.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 890

999 N.Y.S.2d 449

2014 N.Y. Slip Op. 08815

Robert R. MARTINO, etc., appellant

v.PATMAR PROPERTIES, INC., respondent.

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

Dec. 17, 2014.

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant.

Rubin, Fiorella & Friedman, LLP, New York, N.Y. (Shelley R. Halber of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Greco, Jr., J.), dated April 29, 2013, as granted that branch of the defendant's motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint is denied.

On January 2, 2010, Louis Martino (hereinafter the decedent) allegedly was injured when he fell and suffered head trauma in an apartment he rented from the defendant. After the decedent passed away from medical issues unrelated to the subject accident, his son, as executor of the decedent's estate, commenced this action to recover damages for personal injuries. The defendant moved, inter alia, for summary judgment dismissing the complaint, and the Supreme Court granted that branch of the motion.

A property owner has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 ; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Friedman v. 1753 Realty Co., 117 A.D.3d 781, 986 N.Y.S.2d 175 ). In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689 ; Bravo v. 564 Seneca Ave. Corp., 83 A.D.3d 633, 634, 922 N.Y.S.2d 88 ; Bloomfield v. Jericho Union Free School Dist., 80 A.D.3d 637, 638, 915 N.Y.S.2d 294 ; Pryzywalny v. New York City Tr. Auth., 69 A.D.3d 598, 598, 892 N.Y.S.2d 181 ). A plaintiff's inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation (see Palahnuk v. Tiro Rest. Corp., 116 A.D.3d 748, 983 N.Y.S.2d 603 ; DeForte v. Greenwood Cemetery, 114 A.D.3d 718, 980 N.Y.S.2d 499 ; Deputron v. A & J Tours, Inc., 106 A.D.3d 944, 945, 964 N.Y.S.2d 670 ).

Here, in support of its motion the defendant submitted a copy of the plaintiff's deposition testimony, at which he testified that the floor of the hallway in the decedent's apartment was “warped” and “bowed.” He testified that he was walking “right behind” the decedent when he fell, that he saw him fall, and that he fell because “the floor always went down in that area.... [H]is foot went down, and wasn't [on] sturdy ground and he went down.” He also stated that “My father fell to the left because that [was] where the floor went down and that is where he fell.” In light of this testimony, the Supreme Court erred when it determined that the plaintiff could not identify the cause of the decedent's fall without resorting to speculation (see Palahnuk v. Tiro Rest. Corp., 116 A.D.3d at 749, 983 N.Y.S.2d 603 ; cf. Deputron v. A & J Tours, Inc., 106 A.D.3d at 945, 964 N.Y.S.2d 670 ). The defendant also failed to demonstrate, prima facie, that it did not have actual or constructive notice of the allegedly dangerous condition, as the plaintiff testified at his deposition that the decedent had been making “ongoing” complaints to the defendant about the warped condition of the floor since 2001, and that he had also notified the defendant of the warped condition of the floor himself several times before the accident.

The defendant argues that any negligence on its part was not the proximate cause of the decedent's injuries as a matter of law. “Generally, it is for the trier of fact to determine the issue of proximate cause” (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ; Scala v. Scala, 31 A.D.3d 423, 424, 818 N.Y.S.2d 151 ). “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d at 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, 72 N.Y.2d at 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ; Scala v. Scala, 31 A.D.3d at 424, 818 N.Y.S.2d 151 ). “Additionally, there may be more than one proximate cause” of a plaintiff's accident and injuries (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d at 889, 922 N.Y.S.2d 550 ; see Gestetner v. Teitelbaum, 52 A.D.3d 778, 778, 860 N.Y.S.2d 208 ; Scala v. Scala, 31 A.D.3d at 424–425, 818 N.Y.S.2d 151 ; Hyde v. Long Is. R.R. Co., 277 A.D.2d 425, 426, ...