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Infante v. Renaissance Associates

Sup Ct, New York County

August 9, 2013


Unpublished Opinion


The following papers, numbered 1 to _ were read on this motion for/to


Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ... 1

Answer — Affidavits — Exhibits ..................................................... 2

Replying Affidavits_ ....................................................................... 3.

Francisco Infante, ("Plaintiff) brings this action for personal injuries allegedly sustained when he slipped and fell while descending the staircase in the rear of the building ("the staircase") located at 49-55 Wadsworth Terrace in the County and State of New York ("the Premises"). Plaintiff alleges that Renaissance Associates, Redco Management Corp. ("Redco"), and T.U.C. Management Corp. (collectively, "Defendants") were negligent in allowing the staircase to become dirty with garbage and debris. Plaintiff alleges that the staircase was defective in that it lacked "appropriate" handrails, and that there was a chip in the nosing of the step. Defendants now move for summary judgment pursuant to CPLR §3212. Plaintiff opposes.

Defendant has resided at the Premises in apartment 2H since 2002. The Premises are owned by Defendant Renaissance Associates. Defendant T.U.C. Management Company, Inc. is the managing agent for the building. Defendant Redco is the former managing agent for the building, having turned management of the building over to T.U.C. Management Company in April 2007.

Plaintiff alleges that on February 17, 2008 at approximately 12:30 p.m., while descending a flight of stairs leading from the second floor to the first floor of the Premises, he slipped and fell, sustaining serious injuries. Plaintiff testifies in his deposition that the cause of the accident was that "the stairs were dirty. There was cans, that was things like fast food. Cigarette butts, a lot of cigarette butts." Plaintiff alleges that his foot got stuck in a chip in the nosing of the staircase, and that he was unable to grab onto a handrail, as there was not one on his left side. Plaintiff asserts that Defendants had both actual and constructive notice of the dangerous conditions above.

Defendants, in support of their motion for summary judgment, submit: the Verified Bill of Particulars; the Summons and Complaint; Defendant's Answer along with Defendant's demand for the Verified Bill of Particulars and a combined demand for discovery and inspection; the deposition transcript of Plaintiff; photographs of the staircase; the deposition transcript of Luis Barbecho ("Mr. Barbecho"), the Superintendent of the premises; and the Affidavit of Louis Evangelista, Jr., a General Partner in Renaissance Associates.

Plaintiff, in opposition, provides: the Affidavit of Plaintiff; the Verified Bill of Particulars; and photographs of the staircase.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [1970]). (Edison Stone Corp. v. 42nd Street Development Corp., 145 A.D.2d 249, 251-252 [1st Dept. 1989]).

Liability for any dangerous conditions on property "must be predicated upon a defendant's "ownership, occupancy, control or special use of the subject property." (See, Valmon v. 4 M&MCorporation, 291 A.D.2d 343, 738 N.Y.S.2d 340 [1st Dept 2002]). As to claims against Redco, the Affidavit of Luis Evangelista, Jr., a General Partner at Renaissance Associates, the owners of the Premises, states, "T.U.C. Management Company, Inc. took over the management of the building from defendant Redco Management Corp. in April of 2007" and "[a]t the time of Plaintiff s accident, no entity other than T.U.C. Management Company, Inc. was responsible for the management of the premises." Redco did not own, lease, occupy, control, supervise, operate, manager or derive any special use out of the subject property at the time of Plaintiff s accident. Plaintiff has not provided any evidence to raise an issue of ...

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