Toro v. McComish

212 N.Y.S.3d 192

227 A.D.3d 1120

Carmen I. TORO, appellant,

v.Donna R. MCCOMISH, respondent.

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

Argued—February 9, 2024

May 29, 2024

The Barnes Firm, P.C., New York, NY (Martha M. Pigott, Gregg S. Maxwell, and Christopher J. Trochiano of counsel), for appellant.

Farber Brocks & Zane, LLP, Garden City, NY (Charles T. Ruhl of counsel), for respondent.

BETSY BARROS, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated September 10, 2021. 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.

On July 31, 2018, the plaintiff allegedly fell while descending a staircase on the defendant’s premises, sustaining personal injuries. The plaintiff commenced this personal injury action against the defendant, who subsequently moved for summary judgment dismissing the complaint. In an order dated September 10, 2021, the Supreme Court granted the defendant’s motion. The plaintiff appeals.

[1–3] "In 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 Villalba v. Daughney, 214 A.D.3d 843, 183 N.Y.S.3d 755). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability ‘depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury’ " (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489, quoting Guerrieri v. Summa, 193 A.D.2d 647, 647, 598 N.Y.S.2d 4 [internal quotation marks omitted]; see Wilks v. City of New York, 144 A.D.3d 673, 674, 40 N.Y.S.3d 504). However, summary judgment in favor of a defendant is appropriate where there is no evidence of a defective condition (see Wilks v. City of New York, 144 A.D.3d at 674, 40 N.Y.S.3d 504; Witkowski v. Island Trees Pub. Lib., 125 A.D.3d 768, 769, 4 N.Y.S.3d 65; Lezama, v. 34–15 Parsons Blvd, LLC, 16 A.D.3d at 560, 792 N.Y.S.2d 123), or " ‘the plaintiff cannot identify the cause of his or her fall without engaging in speculation’ " (Mitgang v. PJ Venture HG, LLC, 126 A.D.3d 863, 863–864, 5 N.Y.S.3d 302, quoting Ash v. City of New York, Inc., 109 A.D.3d 854, 855, 972 N.Y.S.2d 594; see Vojvodic v. City of New York, 148 A.D.3d 1086, 1087, 51 N.Y.S.3d 534). "Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action" (Villanueva v. DJ’s Intl. Buffet, Inc., 219 A.D.3d 863, 865, 195 N.Y.S.3d 286 [internal quotation marks omitted]; see Padilla v. CVS Pharm., 175 A.D.3d 584, 585, 107 N.Y.S.3d 428).

[4] Here, the defendant failed to establish, prima facie, her entitlement to judgment as a matter of law dismissing the complaint based on the plaintiff’s alleged inability to identify what caused her accident (see Dilorenzo v. Nunziatto, 209 A.D.3d 838, 839, 177 N.Y.S.3d 72; Samuelsen v. Wollman Rink Operations LLC, 201 A.D.3d 490, 491, 161 N.Y.S.3d 64). The defendant also failed to demonstrate, prima facie, that a dangerous condition did not exist on the staircase (see San Antonio v. 340 Ridge Tenants Corp., 204 A.D.3d 713, 715, 166 N.Y.S.3d 256).

At the plaintiff’s deposition, a transcript of which was submitted by the defendant in support of her motion for summary judgment, the plaintiff testified that her fall was caused by the fact that the "stairs were not level … not straight." Although the plaintiff testified that she might have lost her balance on either the fourth step from the top of the staircase or the fourth step from the bottom of the staircase, the report of the plaintiff’s expert witness, which was also submitted in support of the defendant’s motion, stated that the treads on the staircase were "uneven and pitched forward," creating an "inherent walking hazard," and that the "out-of-level and sloping condition" affected "the entire staircase."

[5, 6] The defendant also failed to establish, prima facie, that she did not have constructive...