DORIS LING-COHAN, J.S.C.
The following papers, numbered 1-4 were considered on this motion for summary judgment:
Notice of Motion/Order to Show Cause, - Affidavits - Exhibits...........1, 2
Answering Affidavits - Exhibits ...........3
Cross-Motion: [ ] Yes [ X ] No
Upon the foregoing papers, it is ordered that this motion for summary judgment is denied for the reasons set forth below.
Plaintiff Emiliana Nunez (Emiliana) brings this action to recover damages for personal injuries allegedly sustained as a result of a trip and fall in front of 250 Mulberry Street, New York, New York (Building), owned by defendant Wah Kok Realty Corp. Plaintiff Alejandro Nunez, plaintiff Emiliana's husband, has a derivative cause of action.
On January 13, 2010, plaintiff Emiliana tripped on a Christmas tree in front of the Building and fell to the floor hitting her right arm and shoulder (Accident). Thereafter, plaintiffs commenced this action against defendant alleging that defendant was negligent in maintaining the public sidewalk in front of the Building in a reasonably good and safe condition. Specifically, plaintiffs allege that on the date of the Accident, the sidewalk in front of the Building had, inter alia, a Christmas tree discarded near the curb which caused plaintiff Emiliana to trip and fall. Defendant now moves for summary judgment.
In order to establish negligence, a plaintiff is required to prove "the existence of a duty, that is, a standard of reasonable conduct in relation to the risk of reasonably foreseeable harm; a breach of that duty and that such breach was a substantial cause of the resulting injury". Baptiste v New York City Tr. Auth., 28 A.D.3d 385, 386 (1st Dep't 2006), citing Palsgrafv Long Is. R.R. Co., 248 NY 339 (1928). Additionally, "[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 eliminate any material issues of fact from the case". Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. Id. at 853. Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Moreover, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. Zuckerman v City of New York, 49 N.Y.2d 557, 560 (1980). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J. C. Duggan, Inc., 180 A.D.2d 579, 580 (1st Dep't 1992), citing Dauman Displays, ...