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Rosales v. Aro 150 Realty, LLC

Supreme Court, New York

April 17, 2013

AMELIA ROSALES, Plaintiff,
v.
ARO 150 REALTY, LLC and GALAXY HAIR SALON, INC., Defendants Index No. 107655/10

Unpublished Opinion

HON. LOUIS B. YORK, J.

Defendants ARO 150 Realty, LLC ("ARO") and Galaxy Hair Salon, Inc. ("Galaxy") move, pursuant to CPLR 3212, to dismiss the Complaint in this personal injury action. In the alternative, defendants move to preclude trial testimony from plaintiff's expert witness.

BACKGROUND

Plaintiff, Amelia Rosales, brings this action to recover damages for personal injuries she allegedly sustained when she slipped and fell on an outdoor stairway at the premises located at 150 Manhattan Avenue, New York, New York (the "subject premises"). The following facts are gleaned from the parties' submissions.

ARO owns the subject premises. Galaxy, a first floor tenant, operates a hair salon. Plaintiff claims that she slipped and fell on the broken outdoor stairway of the subject premises, sustaining serious injury.

The Complaint essentially alleges that defendants were negligent in the ownership and maintenance of the outdoor stairway. Specifically, the Complaint alleges that defendants failed to provide a safe means of ingress and egress for the subject premises; maintained a dangerous and hazardous condition on the outdoor stairway for a long time after receiving action notice of said condition; failed to erect signs or handrails to protect users of the outdoor stairway; and violated codes, rules, and regulations pertaining to the ownership and maintenance of the outdoor stairway. The Bill of Particulars contains similar allegations, and adds that plaintiff suffered, inter alia, multiple fractures to her right shoulder.

Defendants filed separate answers, generally denying the allegations in the Complaint and alleging cross claims for contribution or indemnification against each other.

Defendants now seek summary judgment dismissing the Complaint. Plaintiff opposes the motion, essentially arguing that the motion is untimely and that, in any event, material issues of fact exist which require a trial.

DISCUSSION

Preliminarily, plaintiff's challenge to the timeliness of defendants' summary judgment motion lacks merit. The submissions reveal that parties appeared at a Status Conference on March 21, 2012. By Status Conference Order, issued the same day, this Court directed that the Note of Issue must be filed by April 25, 2012 (Affirm in Opp, Exh A). In addition, the Compliance Conference Directives of this Court states that "[m]otions for summary judgment must be made within 60 days of the Note of Issue date or will be denied" (id.). The Affidavit of service states that the summary judgment motion was filed on June 21, 2012. As such, the motion is timely (see CPLR 3212 [a]; Fainberg v Dalton Kent Sec. Group, Inc., 268 A.D.2d 247, 248 [1st Dept 2000]).

Turning to the merits, it is well settled that the 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 (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra) . Mere conclusions', expressions of hope, or unsubstantiated allegations or assertions are insufficient to defeat summary judgment (id.).

Here, as stated, the Complaint alleges a cause of action for negligence against defendants. Negligence is the breach of a duty of care, resulting in injury (see Pulka v Edelman, 40 N.Y.2d 781, 782 [1976]). It is well established that New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition (Tagle v Jakob, 97 N.Y.2d 165, 168 [2011]). Moreover, where the property is open to the public, the owner has a nondelegable duty to provide a reasonably safe premises and a safe means of ingress and egress (Backiel v Citibank, N.A., 299 A.D.2d 504, 505 [2d Dept 2002]). In addition, landlords and permittees have a common-law duty to minimize foreseeable dangers on their property (Maheshwari v City of New York, 2 NY3d 288, 294 [2004]).

Here, plaintiff claims that her injuries were caused by defendants' breach of their duty to maintain the subject premises in a safe condition, to provide safe means of ingress and egress for the subject ...


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