Taveras v. 1149 Webster Realty Corp.

• Decision Date: 15 December 2015
• Citation: 134 A.D.3d 495,23 N.Y.S.3d 162
• Parties: Hector TAVERAS, Plaintiff–Appellant, v. 1149 WEBSTER REALTY CORP., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 495

23 N.Y.S.3d 162

Hector TAVERAS, Plaintiff–Appellant,

v.1149 WEBSTER REALTY CORP., et al., Defendants–Respondents.

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

Dec. 15, 2015.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Michael H. Zhu of counsel), for appellant.

Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for 1149 Webster Realty Corp., respondent.

Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for A & K Convenience Store, Inc., respondent.

TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, KAPNICK, JJ.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 23, 2014, which, insofar as appealed from as limited by the briefs, sua sponte dismissed the complaint as against defendant 1149 Webster Realty Corp. (Webster) and granted the motion of defendant A & K Convenience Store, Inc. (A & K) for summary judgment dismissing the complaint as against it, reversed, on the law, without costs, the sua sponte dismissal of the complaint as against Webster vacated, and defendants' motions for summary judgment denied.

Plaintiff Hector Taveras commenced this action to recover damages for personal injuries he sustained on May 30, 2010 while exiting a convenience store located at 349 East 167th Street, in the Bronx. Plaintiff alleges in his bill of particulars that he "was caused to fall as a result of a dangerous and defective condition on the ramp leading from the public sidewalk to the entranceway of the" convenience store. The premises was owned by defendant Webster and leased to defendant A & K.

"In a summary judgment motion, the movant must make a prima facie showing of entitlement to judgment as a matter of law before the burden shifts to the party opposing the motion to establish the existence of a material issue of fact" (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ; see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).

Contrary to the conclusions of the dissent, we find that defendants in this case failed to meet their initial burden of establishing, prima facie, their entitlement to judgment as a matter of law by asserting that plaintiff could not identify the defect that caused him to fall. In fact, plaintiff, who testified at his depositions through a Spanish interpreter, testified at his first deposition that upon exiting the convenience store he "stepped like on a hole," and that he "stepped on something" on the defective ramp which caused his ankle to twist and him to fall to the ground. He further testified at that deposition that "[w]hen [he] stepped, it was that [he] felt like something—that something was not right underneath," "[l]ike [he] stepped on something not solid." That plaintiff could not initially identify the location of his accident, based upon photographs he was shown at his first deposition that depicted only the bottom portion of a door with no other identifying features, is hardly surprising and not dispositive. Upon being shown, at his second deposition, additional photographs depicting the full entrance area and front of the convenience store, plaintiff was able to definitively identify and mark with an "X" the area on the ramp which was "not leveled" and caused him to fall (see e.g. Figueroa v. City of New York, 126 A.D.3d 438, 440, 5 N.Y.S.3d 62 [1st Dept.2015] [testimony not speculative when plaintiff could not pinpoint the exact location of her fall in photographs and later clarified upon further questioning] ). Plaintiff's testimony distinguishes this case from the cases cited by the dissent where this Court determined that defendants had sustained their burden of establishing their entitlement to summary judgment as a matter of law because a jury would have to engage in "impermissible speculation to determine the cause of the accident" (Smith v. City of New York, 91 A.D.3d 456, 456–457, 936 N.Y.S.2d 178 [1st Dept.2012], lv. denied 21 N.Y.3d 858, 2013 WL 2476556[2013] [plaintiff testified at her deposition that she had "no idea" how she tripped and fell and she could not identify or mark on photographs the specific rise, declivity or defective condition that caused her accident ]; see also Morrissey v. New York City Tr. Auth., 100 A.D.3d 464, 464, 953 N.Y.S.2d 503 [1st Dept.2012] ).

A & K's argument that it owed no duty to plaintiff, is unavailing. As an operator of a place of public assembly, A & K is charged with providing its customers with a safe means of ingress and egress (see Peralta v. Henriquez, 100 N.Y.2d 139, 143, 760 N.Y.S.2d 741, 790 N.E.2d 1170 [2003] ; Masillo v. On Stage, Ltd., 83 A.D.3d 74, 79, 921 N.Y.S.2d 20 [1st Dept.2011] ).

Furthermore, this Court cannot grant A & K, a nonappealing party, affirmative relief with respect to its cross claim against Webster for common-law indemnification, a ground unrelated to those at issue on appeal (see Hecht v. City of New York, 60 N.Y.2d 57, 60, 467 N.Y.S.2d 187, 454 N.E.2d 527 [1983] ).

All concur except TOM J.P. and ANDRIAS J. who dissent in a memorandum by ANDRIAS J. as follows:

ANDRIAS J. (dissenting).

The majority reverses the dismissal of the complaint against defendants A & K Convenience Store, Inc. (A & K) and 1149 Webster Realty Corp. (Webster). Because I disagree with the majority's conclusion that defendants failed to meet their initial burden of establishing, prima facie, their entitlement to judgment as a matter of law, and because plaintiff failed to raise a triable issue of fact, I respectfully dissent.

Plaintiff alleges that he was injured when, while exiting A & K's convenience store, he twisted his ankle and fell as the result of a "dangerous and defective condition" on the ramp that led from the sidewalk to the entrance of the store. Webster owned the premises and A & K leased it.

Defendants satisfied their burden by submitting plaintiff's deposition testimony establishing that he was unable to identify the cause of his fall without speculation (see ...