Plaintiff brings this personal injury case against Mid-Bronx Senior Citizens Council, Inc. (hereinafter “Mid-Bronx” or “defendant”), Healthy Living Systems, Inc., and The Andrew Freedman Home (hereinafter “Freedman Home”). Mid-Bronx now moves for summary judgment pursuant to CPLR 3212, dismissing the plaintiff’s complaint and any cross claims asserted against it. Plaintiff opposes the motion and cross-moves to compel discovery. Plaintiff seeks damages for injuries allegedly sustained at the right side of the McClellan Street gate entrance of the Freedman Home located at 1125 Grand Concourse in Bronx County. Mid-Bronx owned the building located at the subject premises. Plaintiff alleges that on April 11, 2019, at or around 2:30 p.m., he was injured at the subject location after the conclusion of an employment training session that he was participating in. Plaintiff claims that as he attempted to exit the premises, the gate was closed and locked, and upon attempting to reenter the building, the front door was locked. The plaintiff further alleges that he could not get anyone to answer the door, so he attempted to exit the premises over the McClellan Street side of the premises by climbing over a 15-foot wall, and that when he jumped down to the sidewalk, that’s when he injured himself. Plaintiff claims the defendants’ failure to provide a reasonably safe means of egress for a lawful visitor on the premises constitutes a dangerous and unsafe condition, and therefore caused the plaintiff to have to climb over the wall, which plaintiff alleges is the proximate cause of the accident. The defendant argues in its motion for summary judgment that no dangerous or defective condition existed at the premises, and that the plaintiff was the sole proximate cause of his injuries. In opposition, plaintiff contends that there are triable issues of fact, and in the alternative, plaintiff’s motion is premature since relevant discovery is outstanding. The proponent of a summary judgment motion must make a prima facie case showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851 91985). The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 (2014). Once this showing has been made, however, 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. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). A defendant property owner who moves for summary judgment in a personal injury action arising from an alleged hazardous or defective condition on his or her property has the burden of establishing that he or she did not create the hazardous or defective condition or have actual or constructive notice of its existence. Schnell v. Fitzgerald, 95 AD3d 1295, 1295 (2012). The defendant contends that it neither created a dangerous condition or that one existed at the time of the incident as a matter of law. Defendant relies on the deposition testimony of the plaintiff and argues that upon the plaintiff’s own volition, he decided to climb over the wall causing his own injuries. Plaintiff also testified that although he had a working mobile phone, he did not attempt to call someone in the building to open the locked door or 911 until after the accident. When questioned about his activities on the day of his accident, the plaintiff testified that he might have ingested half of a cigarette of PCP prior to the happening of the accident, but he denied consuming any alcohol. He then testified that he might have taken PCP the night before the accident but that he did not ingest any PCP while on the subject premises. Plaintiff’s medical records from Montefiore on the date of the subject accident confirm that the plaintiff tested positive for cannabinoid and opiates on admission. Plaintiff further testified that on the date of the incident he experienced an anxiety attack, and admits that is what caused him to become so overwhelmed that instead of waiting a few minutes more for someone to help him, he took it upon himself to climb over the 15-foot wall to exit the premises. This Court finds that a reasonable person in plaintiff’s situation would not have climbed over an extremely high wall, instead they would have called for help or waited for assistance. Plaintiff’s reckless conduct is what caused his injury not the locked gate, which is not a dangerous condition in and of itself. This Court is unaware of any court that has found a locked gate to be a dangerous or defective condition. Here, the defendant established prima facie entitlement to judgment as a matter of law that a dangerous condition was neither created nor existed based on deposition testimony. In opposition to the motion, there is no triable issue of fact based on plaintiff’s contentions regarding how he was injured. Atanasoff v. Elmont Union Free Sch. Dist., 18 AD3d 678, 678, (2005) (see Oberstein v. Mayfair Super Mkts., 298 AD2d 446, 748 N.Y .S.2d 271; see also Tagle v. Jakob, 97 NY2d 165, 737 N.Y .S.2d 331, 763 N.E.2d 107; Gordon v. American Museum of Natural History, 67 NY2d 836, 501 N.Y .S.2d 646, 492 N.E.2d 774). Here, the locked gate does not appear to be the cause of plaintiff’s injury. Even accepting the plaintiff’s testimony that the gate was locked, his decision to climb over the wall and jump down could not have been a natural and foreseeable consequence when according to plaintiff’s own testimony there were over 200 people inside of the building, and if had he waited a little longer, he could have received assistance. Even if the gate was locked, and this Court were to find that a locked gate was a dangerous condition, the moving defendant is still entitled to summary judgment as the locked gate was not a proximate cause of the plaintiff’s injuries. By plaintiff’s own admission he personally had an anxiety attack, jumped over the wall and not the “locked gate,” and had taken PCP the night before, all of which appear to have contributed to the proximate cause of plaintiff’s injury. Furthermore, where injuries are sustained as a result of an alleged failure to maintain property in a reasonably safe condition, liability is governed by “the standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability” (Basso v. Miller, 40 NY2d 233, 241 [1976]). Under the circumstances of this case, this Court finds, as a matter of law, that the defendant could not reasonably foresee that plaintiff would under the circumstances in which he found himself would attempt to climb over a 15-foot wall and injure himself in the process. Had he been more patient and called for aid he would not have been injured. Lastly, in opposition to the defendant’s prima facie showing, the affirmation of the plaintiff’s attorney was insufficient to raise a triable issue of fact (see CPLR 3212[b]; Yong Dong Liu v. Lowe, 173 AD3d 946, 947 [2nd Dept 2019]). Thus, plaintiff’s independent and reckless act of climbing over the wall is sufficient to relieve defendant of any liability under the circumstances. In its cross-motion, the plaintiff likewise failed to demonstrate that the defendant’s summary judgment motion was premature. Pursuant to CPLR 3212 (f), the court may deny a motion for summary judgment if “it appears from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated.” Plaintiff’s argument that further discovery may yield some evidence of fault on the movant’s part is unsubstantiated and therefore insufficient to rebut the presumption. “The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion” (see Guerrero v. Milla, 135 AD3d 635, 636, 24 N.Y .S.3d 63 [1st Dept.2016]). “Mere conclusory assertions, devoid of evidentiary facts, are insufficient [to defeat a well-supported summary judgment motion], as is reliance upon surmise, conjecture, or speculation.” Grullon v. City of New York, 297 AD2d 261, 263-264 (2002). Discovery is unnecessary because neither the identity of the security personnel nor information relative to any security footage from the date of the accident have any impact on plaintiff’s ability to defend against the underlying motion. Accordingly, it is hereby ORDERED that the motion for summary judgment is granted and the plaintiff’s complaint is dismissed and the cross claims against the defendant Mid Bronx Senior Citizens Council, Inc. is dismissed in its entirety; and it’s further ORDERED that the plaintiff’s cross motion to compel discovery is denied. This is the Decision and Order of the Court. Dated: November 24, 2021
