Opinion
2018-00045 Index No. 505760/14
03-20-2019
Volko KERZHNER, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.
William Pager, Brooklyn, NY, for appellant. Lawrence Heisler, Brooklyn, N.Y. (Harriet Wong of counsel), for respondent.
William Pager, Brooklyn, NY, for appellant.
Lawrence Heisler, Brooklyn, N.Y. (Harriet Wong of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDERORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The plaintiff commenced this action to recover damages for personal injuries that he alleges he sustained when he slipped and fell on an escalator located in a subway station owned by the defendant. After joinder of issue, the defendant moved for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court granted the defendant's motion. The plaintiff appeals. We reverse.
"In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ( Lezama v. 34–15 Parsons Blvd, LLC , 16 A.D.3d 560, 560, 792 N.Y.S.2d 123 ; see Gani v. Avenue R Sephardic Congregation , 159 A.D.3d 873, 873, 72 N.Y.S.3d 561 ; Steed v. MVA Enters., LLC , 136 A.D.3d 793, 794, 26 N.Y.S.3d 98 ). Accordingly, "in a premises liability case, a defendant real property owner ... who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence" ( Gani v. Avenue R Sephardic Congregation , 159 A.D.3d at 873, 72 N.Y.S.3d 561 ; see Kyte v. Mid–Hudson Wendico , 131 A.D.3d 452, 453, 15 N.Y.S.3d 147 ; Pampalone v. FBE Van Dam, LLC , 123 A.D.3d 988, 989, 1 N.Y.S.3d 155 ). "A defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident" ( Gani v. Avenue R Sephardic Congregation , 159 A.D.3d at 874, 72 N.Y.S.3d 561 ; see McRae v. Venuto , 136 A.D.3d 765, 766, 24 N.Y.S.3d 745 ; Izaguirre v. New York City Tr. Auth. , 106 A.D.3d 878, 878, 966 N.Y.S.2d 122 ). Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law. The defendant's submissions, which included a transcript of the plaintiff's deposition testimony, failed to eliminate all triable issues of fact as to whether the defendant had actual or constructive notice of the allegedly dangerous condition of the escalator steps (see Steed v. MVA Enters., LLC , 136 A.D.3d at 794, 999 N.Y.S.2d 449; Martino v. Patmar Props., Inc. , 123 A.D.3d 890, 891–892, 999 N.Y.S.2d 449 ). Furthermore, the plaintiff testified at his deposition that he slipped and fell on a wet step while he was riding an escalator. In light of this testimony, it cannot be said that the plaintiff was unable to identify the cause of his accident (see Steed v. MVA Enters., LLC , 136 A.D.3d at 794, 26 N.Y.S.3d 98 ; Lamour v. Decimus , 118 A.D.3d 851, 851–852, 988 N.Y.S.2d 235 ; Palahnuk v. Tiro Rest. Corp. , 116 A.D.3d 748, 749, 983 N.Y.S.2d 603 ). Contrary to the defendant's contention, the plaintiff's deposition testimony was not incredible as a matter of law, and any conflict in the testimony or evidence presented merely raised an issue of fact for the factfinder to resolve (see Bautista v. Kysor/Warren , 96 A.D.3d 982, 983, 947 N.Y.S.2d 162 ). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint, we disagree with the Supreme Court's determination granting the defendant's motion, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.