August 14, 2013
Erena Topchieva, Plaintiff,
The Lovett Co., LLC, Macarthur Properties, LLC, The Lex 54 Condo., Defendants Index No. 111750/10
Joan M. Kenney, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in review of this motion for summary judgment.
Notice of Motion, Affirmation, and Exhibits 1-14
Opposition Affirmation and Exhibits 15-18
Reply Affirmation and Exhibits 19-22
In this personal injury action, defendants, The Lovett Co., LLC (Lovett), and The Lex 54 Condominium (Lex), move for an Order, pursuant to CPLR 3212, dismissing the complaint against them.
On January 17, 2010, between the times of 7:00 pm and 7:30 pm, plaintiff slipped on the floor as she entered her residential building located at 135 E. 54th St., New York, NY (the accident). At the time of the accident it was raining outside, and had been raining for hours prior.
Plaintiff approached the doors of the building from the outside, and was let in by a porter named Juan. This porter opened the door which was on plaintiffs right. The entrance to the building is composed of two glass doors, one of which was locked, and the other open to let people in and out of the building. The locked door was on plaintiffs left as she entered the building. When the porter opened the door and plaintiff took a step into the building, the sole of her right shoe (which was wet from the rain and the pavement outside) slipped on the floor, causing her to fall and collapse down onto her left leg, causing her injuries.
Ellen Kornfeld, Vice President and Partner of Lovett (the managing agent), testified at an examination before trial (EBT) on behalf of moving defendants, and stated that "in the event of rain or snow, the building staff was required to put rain mats out at the entrance where the front door opens." (Kornfeld EBT at pp. 48-49). It is undisputed that a rain mat was on the lobby floor when the accident occurred.
However, plaintiff claims that the mat was not placed in front of the open door, but instead was placed off to the left, mostly in front of the locked door, so that her first step inside the premises with her right foot was directly onto the floor, and not on the mat. Defendants refute this statement, and insist that the mat slid to the left due to plaintiffs fall. Surveillance video of the accident, provided with plaintiffs opposition, and viewed by the Court, does not definitively show that plaintiffs first step was in fact on the bare floor or if it was onto the mat.
Defendants maintain that they cannot be held liable because: there was no pre-existing dangerous condition; the floor is inherently slippery when wet; and there was a mat placed at the entrance of the premises.
Plaintiff claims that the within motion must be denied because there is a dispute between the parties as to whether or not the mat was properly placed in the entrance of the building to sufficiently cover the area in front of the open door.
Pursuant to CPLR 3212(b), "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action of defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision 'c' of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion."
The rule governing summary judgment is well established: "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 eliminate any material issues of fact from the case." (Winegrad v New York University Medical Center, 64 N.Y.2d 851 ; Tortorello v Carlin, 260 A.D.2d 201 [ 1st Dept 1999]).
Parties who are charged with maintaining a premises are also "charged with the duty of providing the public with a reasonably safe premises, including a safe means of ingress and egress." (Peralta v Henriquez, 100 N.Y.2d 139 ; "Owner and management company of building open to the public had a nondelegable duty to provide the public...with reasonably safe means of ingress and egress, " Logiudice v Silverstein Properties, Inc., A% A.D.3d 286 [1st Dept. 2008]).
Here, defendants cannot eliminate all material issues of fact. Plaintiff contends that the mat did not cover the entire entrance area and that this negligence caused her to trip and fall. Defendants, on the other hand, assert that the entire entrance area was properly covered by the mat. Unfortunately, it is unclear to this Court from viewing the surveillance footage provided that the mat covered the area in front of the open door. Moreover, it is hornbook law that only the trier of fact can determine the proximate cause of the accident (see Peter McKinnon v Bell Security, 268 A.D.2d 220 [1st Dept. 2000], and the very question of whether or not defendant was negligent in its placement of the mat is itself a question for the trier of fact to determine, (see also Eliseo Carrozzi, etal. v Gotham Meat Corp., etal., 181 A.D.2d 587 [1st Dept. 1992]). Accordingly, it is hereby
ORDERED, that defendants' motion, is denied, in its entirety; and it is further
ORDERED, that the parties proceed to mediation and/or trial, forthwith.