Dilorenzo v. Nunziatto

209 A.D.3d 838

177 N.Y.S.3d 72

Lucille DILORENZO, respondent,

v.Joseph NUNZIATTO, appellant.

2019–12682

Index No. 609945/15

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

Submitted—September 20, 2022

October 19, 2022

McCauley Law Firm, PLLC, White Plains, NY (Todd M. McCauley of counsel), for appellant.

Suris & Associates, P.C., Melville, NY (Brian T. Murtha and Susan R. Nudelman of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Linda J. Kevins, J.), dated September 26, 2019. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly fractured her ankle while descending a staircase in the defendant's home. The plaintiff subsequently commenced this action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint. In an order dated September 26, 2019, the Supreme Court denied the defendant's motion. The defendant appeals.

In a premises liability case, "a defendant real property owner who moves for summary judgment has the initial burden of making a prima facie showing that [he or she] neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence" ( Deutsch v. Green Hills [USA], LLC, 202 A.D.3d 909, 910, 163 N.Y.S.3d 213 ). A defendant can also establish his or her prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff is unable to identify the cause of his or her accident (see Redendo v. Central Ave. Chrysler Jeep, Inc., 205 A.D.3d 1060, 1061, 166 N.Y.S.3d 912 ).

Here, the defendant failed to establish, prima facie, his entitlement to judgment as a matter of law dismissing the complaint based on the plaintiff's alleged inability to identify what caused her alleged accident (see San Antonio v. 340 Ridge Tenants Corp., 204 A.D.3d 713, 166 N.Y.S.3d 256 ; Samuelsen v. Wollman Rink Operations LLC, 201 A.D.3d 490, 161 N.Y.S.3d 64 ; Hughes v. Tower Crestwood 2015, LLC, 197 A.D.3d 633, 153 N.Y.S.3d 104 ). The defendant also failed to establish, prima facie, that a dangerous condition did not exist on the staircase (see San Antonio v. 340 Ridge Tenants Corp., 204 A.D.3d at 715, 166 N.Y.S.3d 256 ; Costen v. Cohen, 124 A.D.3d 819, 819, 2 N.Y.S.3d 552 ), or that he lacked actual or constructive notice of the alleged dangerous condition (see Chuqui v. Amna, LLC,...