Giordano v. Giordano

140 A.D.3d 699

30 N.Y.S.3d 896 (Mem)

2016 N.Y. Slip Op. 04177

Anthony GIORDANO, respondent,

v.Ann E. GIORDANO, appellant.

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

June 1, 2016.

Picciano & Scahill, P.C., Westbury, NY (Francis J. Scahill and Keri A. Wehrheim of counsel), for appellant.

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Arshia Hourizadeh], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered July 6, 2015, which denied her motion for summary judgment dismissing the complaint and her separate motion pursuant to CPLR 3126 to dismiss the complaint for the plaintiff ‘s failure to comply with court-ordered discovery.

The plaintiff allegedly sustained personal injuries when he was ascending a ladder inside the defendant's garage and the ladder moved, causing both the ladder and the plaintiff to fall to the ground. The plaintiff commenced this action against the defendant, alleging that a slimy substance on the ground had caused the ladder to move. The defendant moved for summary judgment dismissing the complaint, contending that the plaintiff did not know what had caused him to fall and that she did not create the alleged slimy condition or have actual or constructive notice of same. The defendant separately moved pursuant to CPLR 3126 to dismiss the complaint for the plaintiff ‘s failure to comply with court-ordered discovery. The Supreme Court denied both motions.

ORDERED that the order is affirmed, with costs.

With respect to the defendant's motion for summary judgment dismissing the complaint, “[i]n order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” (Lezama v. 34–15 Parsons Blvd, LLC, 16 A.D.3d 560, 560, 792 N.Y.S.2d 123 ; see Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689 ; Fontana v. R.H.C Dev., LLC, 69 A.D.3d 561, 562, 892 N.Y.S.2d 504 ; Bodden v. Mayfair Supermarkets, 6 A.D.3d 372, 373, 773 N.Y.S.2d 905 ). “[A] defendant can [also] make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation” (Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 ; see Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302 ; Kudrina v. 82–04 Lefferts Tenants Corp., 110 A.D.3d 963, 964, 973 N.Y.S.2d 364 ).

Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff could not identify what had caused the ladder to move without engaging in speculation (see Viviano v. KeyCorp, 128 A.D.3d 811, 812, 9 N.Y.S.3d 154 ; Patrick v. Costco Wholesale Corp., 77 A.D.3d 810, 811, 909 N.Y.S.2d 543 ; Duncan v. Toles, 21 A.D.3d 984, 801 N.Y.S.2d 359 ). In opposition, the plaintiff submitted the deposition testimony of a nonparty witness, which raised a triable issue of fact as to whether the alleged slimy substance had caused the ladder to move and, consequently, the plaintiff to fall and sustain personal injuries (see generally Buglione v. Spagnoletti, 123 A.D.3d 867, 999 N.Y.S.2d 453 ). Additionally, a triable issue of fact exists as to whether the defendant, who did not inspect the garage within the week prior to the accident, had constructive notice of the alleged slimy condition (see Korn v. Parkside...