In this personal injury action, plaintiff Juanita Young (“Plaintiff”) moves for an Order pursuant to CPLR §3212, granting her summary judgment on the issue of liability against defendant 1530 Rosedale Partners, LLC (“Rosedale”), and striking Rosedale’s affirmative defenses pertaining to comparative fault. Rosedale opposes the motion and cross-moves for an order pursuant to CPLR §3212 dismissing the complaint of plaintiff against it. Plaintiff commenced this action against Rosedale on September 24, 2018. On September 28, 2020 Rosedale commenced a third-party action against Richard Delgado Jr. and R.D. Home Improvement. On January 14, 2021 Rosedale filed a second third-party complaint against the plaintiff’s son, Buddy Young. This action arises from an accident that occurred on January 13, 2018, at approximately 9:00 a.m., at the premises located at 1530 Rosedale Avenue, Bronx, New York. Rosedale owns the premises which is a three-family residential building. Plaintiff, 63 years old and legally blind, alleges in her complaint that she was leaving her apartment on the third floor of the building with one of her grandsons, when she was caused to fall down the staircase in between the third and second floors. She stated in her deposition testimony that after walking slowly about three to four steps, she started to lose her balance and then tried to grab onto the handrail again, “but it wasn’t there.” She added that the “rail was broke, so I couldn’t grab it, so I had nothing to get my balance back.” She alleges that the incident occurred because the lighting was poor and because the handrail on the staircase was broken, loose, and/or detached, and that Rosedale, the owner of the premises, was negligent in causing the condition, and negligent in failing to repair them despite having actual and/or constructive notice. Plaintiff testified at her deposition that she had lived at the subject premises for approximately three and a half years with her daughter, D’Nai Young, her two grandchildren and her son, Buddy Young. During this time, she also split time living at another location with another daughter. The subject building consists of two floors and a basement with a total of three apartment units. The apartment in which she lived was the only unit on the third floor. Plaintiff further testified that the handrail had been loose for about eight (8) months to a year prior to the accident and she told her daughter about it, and her daughter in turn called the landlord and the “section 8 people.” Plaintiff maintains that the landlord never repaired it. Plaintiff further explained that just before the accident, she had spent about two weeks at her other daughter’s house and when she returned at the time of the accident, the handrail had gotten worse. She added that the handrail was always loose when she used it before the accident, more specifically, it would move and was not sturdy. In further support of her motion, plaintiff relies on the deposition of Atin Batra, who has an ownership interest in Rosedale. He testified that Rosedale has owned the subject premises since spring of 2017, and for the first three to four weeks of ownership of the subject premises, he visited the property twice a week to essentially make sure the building was in order and “stabilized.” With respect to the building maintenance, Batra testified that he hired Richard Delgado as a handyman to take care of any repairs in the building. While Delgado performed work at the building per instructions from him, Batra testified that Delgado was not required to perform inspections. The only inspections performed at the building were by Housing Authority officials through section 8. Batra did not know when the subject handrail was last inspected prior to January 13, 2018. Batra admitted that plaintiff complained to him, he believes one time about the handrail prior to January 13, 2018, but he does not recall the date. He testified that after she complained, he instructed Mr. Delgado to fix it, which he claims Delgado informed him that he performed the necessary repair on the handrail. Delgado testified at his deposition that he fixed the handrail twice, but he does not know the dates he repaired it and he did not take photographs of this work. Delgado had no invoice to substantiate the work that was performed, despite his testimony that his usual practice was to prepare an invoice after performing repairs and presenting them to Batra. Plaintiff also relies on the deposition testimonies of her daughter, son and grandson. Plaintiff’s daughter, who also resided at the premises, testified that the handrail was detached at the bottom of the staircase from November of 2017 thorough the date of the incident, January 13, 2018. She added that the handrail had been loose since at least March of 2017 and eventually became detached in November of 2017, but had never been repaired during that time, despite her verbal complaints to the landlord. Plaintiff’s son, Buddy Young who likewise resided in the subject building, testified that the handrail was always loose, and he noticed that it had become detached at the bottom of the staircase about two (2) to four (4) weeks before the accident. Plaintiff’s grandson also testified that he observed the handrail off the wall one month prior to the accident. Plaintiff’s daughter and son also testified that the photograph shown to them depicting the handrail (marked as Exhibit D) ripped from the bottom depicts how the handrail appeared on the date of the accident. Rosedale opposes the partial summary judgment motion and contend that it is entitled to summary judgment as the evidence shows that the defendant did not create the condition and defendant did not have actual or constructive notice of the condition of the handrail. In opposition and in support of its cross motion for summary judgment, Rosedale relies on the deposition testimony of the parties and non-parties relied upon by the plaintiff. Rosedale maintains that it never received any complaints or violations from section 8 regarding the staircase or handrail. Prior to the plaintiff’s accident, Batra testified that the plaintiff complained to him about the handrail prior to January 13, 2018, but he does not recall the date. He claims that Delgado fixed the handrail in response to the complaint by reinforcing it and screwing it back into the beam. Batra also could not recall the condition of the handrail at his last visit to the property prior to January 13, 2018. He testified that Delgado fixed the handrail and plaintiff informed him everything was fine. Prior to the plaintiff’s accident, Delgado testified that he saw plaintiff’s son, Buddy Young stand on the handrail to change the lightbulbs. Delgado testified that he is unaware if the subject handrail had ever been inspected prior to January 13, 2018 but maintains that he repaired the handrail twice. He testified that one repair took place while Batra was in the process of purchasing the building and the second repair occurred after either Batra or a tenant reported that it was broken. Delgado could not recall when the second repair took place or if it happened after the subject accident. Based on the submitted evidence, Rosedale argues that the testimony established that it did not create the condition of the handrail, and that after the handrail was repaired, plaintiff’s son Buddy Young created the defective condition by standing on the handrail and breaking it. Further, Rosedale argues that it did not have notice of the condition. Rosedale contends that it conducted reasonable inspections and the Housing Authority never made any complaints or issued any violations regarding the subject handrail. After Rosedale’s witnesses testified in this matter, defendant produced work orders. Included in these work orders is a work order dated January 30, 2017. According to the January 30, 2017 work order, “East Shore Management LLC,” billed defendant $7,500 for work performed in plaintiff’s apartment. Included in the work order was a bill for $450 to “Fix and Reinforce Bannister.” In reply, plaintiff argues that in opposition to its motion, defendants offered only a speculative attorney’s affirmation without any evidence in admissible form to support the existence of a question of fact defeating summary judgment on liability in plaintiff’s favor. A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039, 1043 [2016]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary judgment, the court should interpret the evidence in a manner that most favors the opposing party (see Kershaw v. Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept. 2013]). “An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition” (Farrar v. Teicholz, 173 AD2d 674, 676 [2nd Dept 1991]). To establish a prima facie case in a slip and fall, plaintiff must show that the defendant either created the dangerous condition or had actual or constructive knowledge of the hazard (Lemonda v. Sutton, 268 AD2d 383 [2000]). In order to constitute constructive notice, a defect ” ‘must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the owners'] employees to discover and remedy it’ ” (O’Connor-Miele v. Barhite & Holzinger, 234 AD2d 106, quoting Gordon v. American Museum of Natural History, 67 NY2d 836, 837 [1986]). In support of the instant motion as to the issue of liability, plaintiff submitted a fair amount of evidence, including deposition testimony of parties and non-parties. Here, the plaintiff’s affidavit and deposition testimonies established its prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to establish that the defendants had constructive notice of the defective condition of the subject handrail. Once plaintiff had established a prima facie case of negligence, it was defendants’ obligation to submit evidentiary proof in admissible form raising triable issues of material fact in order to defeat the motion for summary judgment (Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S.2d 595 [1980]). Defendant failed to satisfy its initial burden of establishing a lack of notice of the defect inasmuch at it offered no testimony as to when the loose handrail was last inspected or repaired prior to the accident (see Moore v. 793-797 Garden St. Hous. Dev. Corp., 46 AD3d 382 [1st Dept 2007]). The work order which shows that the handrail was to be repaired, is dated almost one year prior to the plaintiff’s accident, and does not establish that the work was ever performed. Additionally, Rosedale’s repairman could not say when he last repaired or inspected the handrail. Rosedale also argues that an issue of fact exists regarding plaintiff’s comparative negligence. Contrary to Rosedale’s position, even if this case did present an issue of comparative fault on plaintiff’s part, plaintiff would not be required to make a prima facie showing that she was free from comparative fault in order to be awarded partial summary judgment. To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault (see Rodriguez v. City of New York, 31 NY3d 312, 324-325, 76 N.Y.S.3d 898 [2018]). When a defendant’s liability is established as a matter of law before trial, the jury must still determine whether the plaintiff was negligent and whether such negligence was a substantial factor in causing plaintiff’s injuries. The Rodriguez Court further held that “comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR §1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages” (id. at 320) Therefore, defendants’ submission has failed to meet their burden of providing a nonnegligent explanation for the plaintiff’s accident, whereas the documentary evidence and deposition testimonies proffered by plaintiff are sufficient to establish as a matter of law that Rosedale was at least, partially at fault. Accordingly, it is hereby ORDERED that plaintiff’s motion for partial summary judgment is granted with regard to liability only; and it is further ORDERED that 1530 Rosedale Partners, LLC’s cross motion for summary judgment is denied. This is the Decision and Order of the Court. Dated: June 22, 2021
