Nunez v. Avanzo

• Decision Date: 07 April 2021
• Docket Number: Motion Seq. 1,Index No. EF001814/2019
• Citation: 2021 NY Slip Op 33442 (U)
• Parties: JENNIFER NUNEZ, PLAINTIFF, v. LORID AVANZO and FRANK D AVANZO, DEFENDANTS.
• Court: New York Supreme Court

2021 NY Slip Op 33442(U)

JENNIFER NUNEZ, PLAINTIFF,
v.
LORID AVANZO and FRANK D AVANZO, DEFENDANTS.

Index No. EF001814/2019, Motion Seq. #1

Supreme Court, Orange County

April 7, 2021

Unpublished Opinion

Motion date: Jan 18, 2021

DECISION & ORDER

VAZQUEZ-DOLES, J.S.C.

The following papers numbered 1 - 7 were read on the motion for summary judgment by defendants dismissing the complaint:

Notice of Motion/ Affirmation (Condello)/Exhibits A-G......................1-3

Affirmation in Opposition (DelDuco)/Supporting Affidavit/Exhibits 1-2..........4-6

Reply Affirmation (Condello)...............................................7

This personal injury action arises out of a trip and fall that plaintiff alleges occurred on or about May 3, 2017 inside the premises located at 9 A Main Street, the Hamlet of Wallkill, County of Ulster, New York. The premises is owned by the defendants and plaintiff was a month to month tenant who had been residing there for approximately three years prior to the accident. The alleged defect was raised or "bubbling" carpeting in the hallway of the apartment. Plaintiff alleges inter alia that defendants were negligent in creating the alleged defect by contracting to install insulation under the floor and failing to properly reinstall the carpet causing it to "bubble"

1

creating a "trap like" condition.

This action was commenced by the filing of a Summons and Complaint on March 7, 2019. Plaintiff testified at a deposition on January 3, 2020 and stated that the accident occurred when her foot got caught in the carpet which was bubbling. She noticed the bubbling after defendants had someone come in to install insulation. She stated that it was "bubbly at all times...everybody is walking in and out from that area. And it would come out when I would vacuum." (NYSCEF Doc. #15 at p.28) Plaintiff conceded that she never complained of this condition to the defendants and that they never came to the premises. (NYSCEF Doc. #15 at pp.18, 30)

In their motion for summary judgment, defendants argue that they had no actual or constructive notice of the defective condition alleged by the plaintiff to have caused her to fall. Plaintiff concedes that the bubbling began some time after the insulation work was completed and that she never made any complaints to the defendants prior to her accident. She also concedes that the defendants never saw the condition of the rug as they did not enter the apartment after the insulation install was completed. Plaintiff explained that the area of her fall is a very high traffic area and that vacuuming made the condition worse.

"[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings." (Foster v. Herbert Slepoy Corp., 16 A.D.3d 210, 214 [2d...