The following electronically filed (“EF”) documents read on this motion by Y.S. Happy Corp. d/b/a Happy Norae Bang i/s/h/a Happy Karaoke, Inc. (“Happy Karaoke” or “movant”) for an order pursuant to CPLR §3212, granting summary judgment dismissing the plaintiffs complaint insofar as asserted against it together with such other and further relief as this Court deems to be just and proper. Papers Numbered Notice of Motion-Affirmation-Exhibits-Service EF 43-55 Affirmation in Opposition-Exhibits EF 57-63 Affidavit in Opposition EF 64 Reply Affirmation-Service EF 65-66 Upon the foregoing papers, it is ordered that this motion is determined as follows: BACKGROUND This is an action to recover damages for personal injuries allegedly sustained by Michelle Kim (“Ms. Kim” or “plaintiff”) at Happy Karaoke. According to the unverified complaint, the on March 27, 2013, the plaintiff was walking with her friend from across the street to Happy Karaoke, which is located at 160-30A Northern Boulevard, Flushing, New York (“subject premises”). When the plaintiff entered the subject premises, she slipped and fell down the entire flight of stairs and landed on the basement floor. The unverified complaint also alleges that the plaintiff slipped because, there existed liquid or debris at the top of the stairway that did not belong there. Furthermore, the plaintiff alleges that Happy Karaoke leases the subject premises from Louie Holding, LLC (“Louie”). Approximately two (2) years later, on February 27, 2015, the plaintiff commenced this action against the defendants; and on August 24, 2015, issue was joined, wherein Happy Karaoke interposed an answer. However, the owner of the subject premises failed to either appear or interpose an answer in the instant action. Now, Happy Karaoke moves for summary judgment dismissing the complaint insofar as asserted against it, pursuant to CPLR §3212. In particular, Happy Karaoke makes the following arguments: a) the plaintiff failed to identify what caused her to fall; b) there is no evidence that Happy Karaoke created hazardous condition, which caused the plaintiffs accident; c) there is no evidence that Happy Karaoke had either actual or constructive notice of any dangerous condition on the steps leading down to the karaoke bar; and d) the plaintiff was severely intoxicated when she fell down the stairs, which is the proximate cause of her accident. On February 21, 2018, counsel for Happy Karaoke deposed the plaintiff, wherein she testified as follows: Q: As you were stepping down to the third step with your right foot, where were you looking; were you looking straight ahead, were you looking up at the ceiling, down at the steps, to the side or something else? A: I was looking down on the stairs. p.37 at lines 16-23. Q: As you were looking down at the stairs, did you see anything wrong with the stairs? A: That, I did not get to see. p.37 at lines 24-25, p.38 at lines 2-3. Q: Did you see any garbage on the stairs? A: No. p.38 at lines 4-6. Q: Ms. Kim, let me rephrase it this way, at any time prior to you falling down the stairs, did you see any water on the stairs? A: I’m not sure. p.38 at lines 24-25, p.39 at lines 2-4. Q: What caused you to slip on the step? A: I am not sure, I just know that it happened while I was walking down the stairs. Either I stepped on something, I slipped on something, I am not sure. In addition to the plaintiff’s testimony, Happy Karaoke provided the Ambulance Call Report (“ACR”), which indicated that the plaintiff’s accident was caused by severe alcohol intoxication: In fact, the emergency room nurse noted that the plaintiff was drinking and fell down steps; and she had an “altered mental status” and that she was “intoxicated”. Moreover, the movant provided an Expert Witness Disclosure Statement from Elizabeth Spratt, M.D. (“Dr. Spratt”), who is a Board-Certified Forensic Toxicology Fellow. After conducting a toxicology record review, Dr. Spratt concluded that based upon a reasonable degree of certainty in the field of Forensic Toxicology, the plaintiff was intoxicated at the time of her accident with a blood alcohol level of 0.219 percent (approximately two and a half times the legal limit of 0.08 percent for driving while intoxicated). Dr. Spratt further concluded that, “at this level, the plaintiff would experience the following: (1) decreased ability to react; (2) decreased ability to concentrate; (3) inhibitions would be removed; (4) increase in apparent level of confidence; (5) judgment would be impaired; (6) coordination would be adversely affected (specifically her balance and equilibrium); and (7) tunnel vision begins to occur — cannot see peripherally and concentrates on what is directly in front of her. Lastly, Dr. Spratt concluded that the plaintiffs level of alcohol contributed to her accident.” Furthermore, the owner of Happy Karaoke, Phil Sook Cho (“Ms. Cho”), testified that her husband would check the karaoke bar throughout the night for cleanliness. Furthermore, Ms. Cho testified that there were no prior slip and fall accidents at the subject premises since it opened in 2005, no complaints about the stairs being slippery due to a wet condition and no Notice of Violations issued by a New York City agency regarding the condition of the stairs. In opposition, the plaintiff argues that “I was not feeling “drunk” at the time and other than the fact that I slipped on something that did not belong on the dark, dimly lit staircase that led to the karaoke in the basement, I was in normal condition.” Moreover, she argues that “[w]hen I was entering the Happy Karaoke stair case, I did not lose control over my actions; I did not fall because I lost control or because I was intoxicated. But for the fall, I would not have passed out…” In further opposition, the plaintiff provided a Professional Engineer’s Report from Harold Krongelb, P.E. (“Mr. Kriongelb”), who is the President and Owner of Heimer Engineering PC (“Heimer”). Mr. Kriongelb inspected the subject premises on November 23, 2016, approximately three (3) years after the subject accident. Notwithstanding the same, he made the following findings: …it my professional opinion to within a reasonable degree of engineering certainty that the proximate cause of Ms. Kim’s injury was the failure of the owner of the subject building to maintain the steps in a safe condition as required by the Building Code of the City of New York. Had the building been maintained in a safe condition, and had the correct bracket been used for the handrail and the handrail installed at the Code-required height, then the injuries to Ms. Kim would not have occurred. Additionally, counsel for the plaintiff argues that Ms. Cho’s testified that the defendant owned and maintained a Closed-Circuit TV (“CCTV”) that videotaped the plaintiff rolling down the full flight of granite stairs. However, they destroyed the video footage. Moreover, counsel erroneously argues that the court ordered on November 28, 2018, that an adverse inference be drawn because the defendants destroyed the footage. In reply, Happy Karaoke argues that the plaintiff failed to identify the cause of her fall, she failed to establish that Happy Karaoke either created and/or had notice of any dangerous condition on the subject stairwell. Lastly, counsel for Happy Karaoke contends that neither Mr. Kriongelb’s Expert Report nor the plaintiff’s self-serving affidavit create a triable question of fact. LEGAL ANALYSIS In a slip and fall case, a property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence” (Johnson v. 101-105 S. Eight St. Apts. Hous. Dev. Fund Corp., 185 AD3d 617 [2dDept2020] citing Parietti v. Wal-Mart Stores, Inc., 29NY3d 1136 [2017]; see also Bonilla v. Southside United Hous. Dev. Fund Corp., 181 AD3d 550 [2020]; Colini v. Stino, Inc., 186 AD3d 1610 [2d Dept 2020]). Moreover, “in a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” (Mallen v. Dekalb Corp., 181 AD3d 669 [2d Dept 2020]; Moiseyeva v. New York City Hous. Auth, 175 AD3d 1527 [2d Dept 2019]; see Bilska v. Truszkowski, 171 AD3d 685 [2d Dept 2019]; Singh v. City of New York, 136 AD3d 641 [2d Dept 2016]; Buglione v. Spagnoletti, 123 AD3d 867 [2d Dept 2014]; Diaz v. City of New York, 190 AD3d 940 [2d Dept 2021]; see also Cross v. Friendship, 154 AD3d 917 [2d Dept 2017]). “Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation” (Mallen v. Dekalb Corp., 181 AD3d 669 [2d Dept 2020] citing Ash v. City of New York, 109 AD3d 854, 855 [2d Dept 2013]). Here, Happy Karaoke established its prima facie entitlement to judgment as a matter of law by submitting the plaintiff’s deposition testimony, which demonstrated that she was unable to identify the cause of her fall without resorting to speculation. {Mallen v. Dekalb Corp., 181 AD3d 669 [2d Dept 2020]; Dennis v. Lakhani, 102 AD3d 651 [2d Dept 2013]; Mitgang v. PJ Venture HG, LLC, 126 AD3d 863 [2d Dept 2015]; Colini v. Stino, Inc., 186 AD3d 1610 [2d Dept 2020]). Furthermore, the court finds that the plaintiffs affidavit submitted in opposition to the instant motion merely raised a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony (see, Mallen v. Dekalb Corp., 181 AD3d 669 [2d Dept 2020]; Bryant v. Loft Bookstore Cafe, LLC, 138 AD3d 664 [2d Dept 2016]; Rivera v. J. Nazzaro Partnership, L.P., 122 AD3d 826 [2d Dept 2014]; Bolde v. Borgata Hotel Casino & Spa, 70 AD3d 617 [2d Dept 2010]). Moreover, the affirmed Expert Report submitted by Mr. Kriongelb was also insufficient to raise a triable issue of fact. Since the plaintiff testified at her deposition that she did not see what caused her to fall on the day of the accident, it would be speculative to assume that the alleged defect her expert identified in the handrails approximately three (3) years after the accident caused her fall (see Rivera v. J. Nazzaro Partnership, L.P., 122 AD3d 826 [2d Dept 2014]; Costantino v. Webel, 57 AD3d 472 [2d Dept 2008]). Lastly, the complaint was verified by the plaintiff’s attorney, who lacked personal knowledge of the facts. As such, the complaint is insufficient to raise a triable issue of fact (see, Mallen v. Dekalb Corp., 181 AD3d 669 [2d Dept 2020]; Irizarry v. Heller, 95 AD3d 951 [2d Dept 2012]; Nerayoff v. Khorshad, 168 AD3d 866 [2d Dept 2019]; Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455 [2d Dept 2006]; Amato v. Fast Repair, Inc., 15 AD3d 429 [2d Dept 2005]; Roche v. Hearst Corp., 53 NY2d 767 [1981]). Accordingly, it is hereby ORDERED that the movant’s motion for summary judgment, pursuant to CPLR §3212, is granted; and it is further, ORDERED that the complaint is dismissed against Y.S. Happy Corp. d/b/a Happy Norae Bang i/s/h/a Happy Karaoke, Inc. only, with prejudice; and it is further, ORDERED that the movant shall serve a copy of this decision and order with notice of entry upon all parties on or before November 5, 2021. The foregoing constitutes the decision and order of the court. Dated: October 12, 2021
