Karel v. Pizzorusso

2023 NY Slip Op 01890

Herb Karel, appellant, v. Mary Ann Pizzorusso, respondent.

No. 2022-02249, Index No. 53329/20

Supreme Court of New York, Second Department

April 12, 2023

Cusano Smith PLLC (Gary A. Cusano and Marie R. Hodukavich Peekskill, NY, of counsel), for appellant.

Barclay Damon LLP, Albany, NY (David M. Cost and Amanda Miller of counsel), for respondent.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court Westchester County (Linda S. Jamieson, J.), dated February 1, 2022. The order granted the defendant's motion for summary judgment dismissing the complaint.

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

The plaintiff allegedly was injured while descending a staircase in the defendant's home. The plaintiff subsequently commenced this action against the defendant to recover damages for personal injuries. During his deposition, the plaintiff testified that as he was descending from a second floor landing to the first step of the staircase, he leaned forward to grab a handrail and fell because the handrail was a "little bit below" the landing. In his bill of particulars, the plaintiff alleged, inter alia, that the handrail was a dangerous condition that caused his injuries, and photographs showed that the handrail ended several inches before the landing at the top of the staircase.

The defendant moved for summary judgment dismissing the complaint. In an order dated February 1, 2022, the Supreme Court granted the defendant's motion. The plaintiff appeals.

The Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint. "[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" (Chimbo v Bolivar, 142 A.D.3d 944, 945 [internal quotation marks omitted]).

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; see Dilorenzo v Nunziatto, 209...