Yefet v. Shalmoni

• Citation: 81 A.D.3d 637,915 N.Y.S.2d 866
• Parties: Dganit YEFET, etc., appellant, v. Keren SHALMONI, et al., respondents.
• Decision Date: 01 February 2011
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 866
81 A.D.3d 637

Dganit YEFET, etc., appellant,
v.
Keren SHALMONI, et al., respondents.

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

Feb. 1, 2011.

Steven S. Efron, New York, N.Y., for appellant.

Mintzer Sarowitz Zeris Ledva & Meyers LLP, New York, N.Y. (Michael E. Stern and Erika L. Omundson of counsel), for respondents.

81 A.D.3d 637

In an action to recover damages for personal injuries and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated September 18, 2009, which granted the defendants' motion for summary judgment dismissing the complaint.

915 N.Y.S.2d 867

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff did not know what caused the plaintiff's decedent to fall from the exterior staircase of the defendants' premises ( see Martone v. Shields, 71 A.D.3d 840, 899 N.Y.S.2d 249; Reiff v. Beechwood Browns Rd. Bldg. Corp., 54 A.D.3d 1015, 864 N.Y.S.2d 175; Plowden v. Stevens Partners, LLC, 45 A.D.3d 659, 846 N.Y.S.2d 238; Denicola v. Costello, 44 A.D.3d 990, 844 N.Y.S.2d 438; Birman v. Birman, 8 A.D.3d 219, 777 N.Y.S.2d 310).

Contrary to the plaintiff's contention, the Noseworthy doctrine ( see Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744) does not apply to this case, since the defendants' knowledge as to the cause of the decedent's fall is no greater than that of the plaintiff ( see Walsh v. Murphy, 267 A.D.2d 172, 700 N.Y.S.2d 32). However, in opposition to the defendant's motion, the plaintiff submitted evidence, including her errata sheet and an expert's affidavit, which was sufficient to raise a triable issue of fact as to whether the absence of a segment of the handrail at the top of the

81 A.D.3d 638

staircase was a proximate cause of the decedent's injuries ( see Boudreau-Grillo v. Ramirez, 74 A.D.3d 1265, 904 N.Y.S.2d 485; Antonia v. Srour, 69 A.D.3d 666, 893 N.Y.S.2d 186; Asaro v. Montalvo, 26 A.D.3d 306, 812 N.Y.S.2d 558; Viscusi v. Fenner, 10 A.D.3d 361, 781 N.Y.S.2d 121). The conflict between the original transcript of the plaintiff's deposition testimony and the correction she submitted in the errata sheet raised an issue of credibility which could not be resolved on the motion for summary judgment ( see Nye v. Putnam...