Kaley v. Trump Vill. Section 4, Inc.

1

2022 NY Slip Op 33599(U)

FRANCINE KALEY, Plaintiff, v. TRUMP VILLAGE SECTION 4, INC. And MAJOR ELEVATOR CORP., Defendants.

Index No. 506893/2020, Motion Seq. # 3

Supreme Court, Kings County

October 19, 2022

Unpublished Opinion

PRESENT: HON. DEBRA SILBER, Justice.

DECISION/ORDER

Hon Debra Silber, J.S.C.

The following e-filed papers read herein: NYSCEF Doc Nos.

Notice of Motion and Affidavits (Affirmations) Annexed 70-81

Opposing Affidavits (Affirmations) 82-83: 87-95

Reply Affidavits (Affirmations) 96_

Upon the foregoing papers, defendant Trump Village Section 4, Inc. (Trump Village) moves for summary judgment (in motion sequence [mot. seq.] three) dismissing the complaint on the issue of liability, in this action which arises from a slip/trip and fall accident, or, in the alternative, granting it summary judgment on its cross-claims against the co-defendant. For the reasons which follow, both branches of the motion are denied.

Background

On March 19,2020, plaintiff Francine Kaley (Kaley) commenced this action against defendants Trump Village and Major Elevator Corp. (Major) by filing a summons and a complaint. The complaint alleges that on August 24, 2019 Kaley sustained personal injuries due to an unsafe condition in the 23^rd floor hallway at the premises, located at 2944 West 5^th Street, Brooklyn, NY. She alleges that she slipped or tripped on a piece of Masonite which had been placed on the floor to protect the flooring while elevator repair/replacement work was performed by defendant Major. The elevator modernization work had started in November, 2018, almost a year before plaintiffs accident. At the time of the accident, Kaley was a residential tenant at the premises. Both defendants answered the complaint, and this action is now on the trial calendar.

The motion for summary judgment on liability

Movant Trump Village moves to dismiss the complaint on the grounds that "Plaintiff has clearly failed to establish or provide any evidence that Trump Village either created the allegedly defective condition or had actual or constructive notice of the allegedly defective condition" [Aff ¶22]. This seems to be addressed to the part of plaintiffs claim that either the Masonite boards had curled up, or the tape holding the Masonite boards together had curled up, which caused her to trip. Counsel then [¶23] turns to her claim that there was a greasy substance on the floor, and continues "plaintiff repeatedly testified and admitted that the grease that caused her to fall was created by the employees of Major Elevator who were doing repair and installation work at the Premises, and not by any associated with Trump Village."

Movant supports the motion with the pleadings, Trump Village's contracts with Major, and the EBT transcript for plaintiffs deposition. Movant Trump Village did not include either of defendants' EBT transcripts in the motion papers.

At her deposition, plaintiff testified that a few days before her accident, there was a big "blotch" of grease on the Masonite on her floor, and she reported it to a porter. When she came home that day, it had been cleaned up. But [Doc 80 Page 58] "it's not like they changed the Masonite, they just wiped it up so it just smeared more." At the time of her accident, she left her apartment and "I slipped on the old grease, and as I was slipping my (left) foot got caught (stuck) on that old tape that was there, that tape that was like curling" and she fell to the floor [Page 63].

In opposition to the motion, co-defendant Major provides solely an attorney's affirmation. Counsel avers that Trump Village fails to make a prima facie case for summary judgment. He quotes plaintiffs testimony and Trump Village's EBT, which was only subsequently e-filed by plaintiff. Plaintiff also opposes, and provides an attorneys' affirmation, the EBT transcript of Joseph Gaba, a senior assistant manager for Trump Village, and an affidavit from another tenant at the premises. Counsel for plaintiff also avers that the court should find that Trump Village has failed to make a prima facie case for summary judgment.

Standards for Summary Judgment

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should thus only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 A.D.3d 493 [2d Dept 2005]; see also Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). However, a motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 N.Y.2d 966, 967 [1988]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]) and the party opposing the motion for summary judgment fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986], citing Zuckerman, 49 N.Y.2d at 562).

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Manicone v City of New York, 75 A.D.3d 535, 537 [2d Dept 2010], quoting Alvarez, 68 N.Y.2d at 324; see also Zuckerman, 49 N.Y.2d at 562; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The motion should be granted only when it is clear that no material and triable issue of fact is presented (Di Menna & Sons v City of New York, 301 NY 118 [1950]). If the existence of an issue of fact is even arguable, summary judgment must be denied (Phillips v Kantor & Co., 31 N.Y.2d 307 [1972]; Museums at Stony Brook v Vil. of Patchogue Fire Dept, 146 A.D.2d 572 [2d Dept 1989]). Also, parties opposing a motion for summary judgment are entitled to every favorable inference that may be drawn from the pleadings, affidavits and competing contentions (Nicklas v Tedlen Realty Corp., 305 A.D.2d 385 [2d Dept 2003]; see also Akseizer v Kramer, 265 A.D.2d 356 [2d Dept 1999]; McLaughlin v Thaima Realty Corp., 161 A.D.2d 383, 384 [1st Dept 1990]; Gibson v American Export Isbrandtsen Lines, 125 A.D.2d 65, 74 [1st Dept 1987]; Strychalski v Mekus, 54 A.D.2d 1068, 1069 [4th Dept 1976]). Furthermore, in determining the outcome of the motion, the court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents (Pierre-Louis v DeLonghi America, Inc., 66 A.D.3d 859, 862 [2d Dept 2009], citing Nicklas v Tedlen Realty Corp., 305 A.D.2d 385 [2d Dept 2003]; Henderson v City of New York, 178 A.D.2d 129, 130 [1st Dept 1991]; see also Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt, P.P., 7 N.Y.3d 96, 105-106 [2006]). Moreover, a party seeking summary judgment has the burden of establishing prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of a claim or defense and not by simply pointing to gaps in the proof of an opponent (Nationwide Prop. Cas. v Nestor, 6 A.D.3d 409, 410 [2d Dept 2004]; Katz v PRO Form Fitness, 3 A.D.3d 474, 475 [2d Dept 2004]; Kucera v Waldbaums Supermarkets, 304 A.D.2d 531, 532 [2d Dept 2003]). Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2010], quoting Scott v Long Is. Power Auth, 294 A.D.2d 348 [2d Dept 2002]; see also Benetatos v Comerford, 78 A.D.3d 750, 751-752 [2d Dept 2010]; Lopez v Beltre, 59 A.D.3d 683, 685 [2009]; Baker v D.J. Stapleton, Inc., 43 A.D.3d 839 [2d Dept 2007]).

Discussion

Because the plaintiff seems to be asserting claims of both a transient greasy condition and of a hazardous premises condition with regard to the "curling" of the Masonite boards/tape, the court will address each separately.

In order to establish freedom from liability in a slip and fall case, that is, where the allegation is of a transient condition, the defendant, "To meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Skerrett v LIC Site B2 Owner, LLC, 199 A.D.3d 956, 2021 NY Slip Op 06386 [2d Dept 2021]; Jeremias v Lake Forest Estates, 147 A.D.3d 742 [2d Dept 2017]; Ellis v Sirico's Catering, 194 A.D.3d 692, 693 [2d Dept 2021]). Counsel for defendant Trump Village in this motion makes no mention whatsoever of this burden of proof in his affirmation in support, nor does movant provide any evidence of when the area was last cleaned or inspected before plaintiffs accident. Thus, movant fails to make a prima facie case for dismissal.

A property owner may be liable for a trip and fall on its property if it '"either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'" (Rojas v Schwartz, 74 A.D.3d 1046, 1047 [2010] quoting Ortega v Puccia, 57 A.D.3d 54, 61 [2008]; see Banscher v Actus Lend Lease, LLC, 132 A.D.3d 707, 709 [2015]). In order to establish freedom from liability in a trip and fall case, that is, where the allegation is of a hazardous condition, the defendant "has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence" (see Guzman v Jewish Bd. of Family & Children's Servs., Inc., 103 A.D.3d 776, 777, ...