Attorney for Plaintiff Justin Brandel, Esq. The Law Offices of Justin D. Brandel, PLLC 274 Madison Avenue, Suite 402 New York, NY 10016 (646) 522-8052 Attorney for Defendant Linda M. Brown, Esq. Herzfeld & Rubin, P.C. 125 Broad Street, 12th Floor New York, NY 10004 (212) 471-8500
Attorney for Plaintiff Justin Brandel, Esq. The Law Offices of Justin D. Brandel, PLLC 274 Madison Avenue, Suite 402 New York, NY 10016 (646) 522-8052 Attorney for Defendant Linda M. Brown, Esq. Herzfeld & Rubin, P.C. 125 Broad Street, 12th Floor New York, NY 10004 (212) 471-8500 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on January 22, 2019, under motion sequence number three, by defendant New York City Housing Authority (hereinafter NYCHA) for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint of Amy Michael (hereinafter plaintiff) on the grounds that (1) plaintiff allegedly gave conflicting stories regarding the subject accident; and (2) the subject accident was caused by superseding and intervening acts of a third-party assailant. Plaintiff has opposed the motion.
-Notice of motion
-Affirmation in support
-Memorandum of law in support
-Affirmation in opposition
-Affirmation in reply
On July 7, 2016, the plaintiff commenced the instant action for damages for personal injury by electronically filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated August 12, 2016, NYCHA joined issue. On December 4, 2018, plaintiff filed a Note of Issue.
Plaintiff's verified complaint and verified bill of particulars alleges the following salient facts. On January 18, 2016, plaintiff was injured when she slipped or tripped and fell on a dangerous condition, namely, an improperly placed and improperly secured doormat (hereinafter the subject doormat) located in front of an apartment in a building owned and operated by NYCHA at 414 Columbia Street, Brooklyn, New York.
NYCHA's motion papers consists of an affirmation of counsel and thirteen annexed exhibits labeled A through M. Exhibit A is a copy of plaintiff's summons and verified complaint. Exhibit B is a copy of NYCHA's verified answer. Exhibit C is a copy of plaintiff's verified bill of particulars. Exhibit D is a copy of the transcript of plaintiff's deposition conducted on August 24, 2018. Exhibit E is a copy of a photograph marked as exhibit A at plaintiff's deposition. Plaintiff testified that the aforementioned photograph fairly and accurately depicted the location and condition of the subject doormat she tripped on at the time of the subject accident. Exhibit F is described by the movant as a copy of part of a medical record from Brooklyn Hospital Center. Exhibit F is described by the movant as a copy of part of a medical record from Brookdale Hospital. Exhibit H is a New York City Police Department report of an alleged assault of the plaintiff which occurred at the time and the place of the subject accident. Exhibit I is a copy of excerpts from a transcript of plaintiff's statutory hearing testimony conducted on June 13, 2016. Exhibit J is a copy of the transcript of the deposition of non-party witness Police Officer Kenneth Miklas conducted on September 29, 2017. Exhibit K contains a copy of an aided report and a complaint report from the New York City Police Department which were marked at the deposition of Police Officer Miklas as exhibit A and exhibit B respectively. Police Officer Miklas testified that he prepared both reports. Exhibit L is a copy of a transcript of the deposition of Carol Reed, an assistant property supervisor of NYCHA, conducted on January 3, 2019. Exhibit M is a document denominated as NYCHA's supplemental response to plaintiff's demand for discovery dated January 14, 2015. The response includes a copy of a notice given by NYCHA to its tenants. The notice advises NYCHA's tenants that in accordance with New York City Building Statutes no items, such as, doormats and furniture, are to be placed in hallways and stairways and that those areas have to be kept clear, unobstructed and accessible at all times.
Plaintiff's opposition papers consist of an affirmation of counsel and three annexed exhibits labeled A through C. Exhibit A is the transcript of plaintiff's statutory hearing conducted on June 13, 2016. Exhibit B is the transcript of the statutory hearing of A.M., plaintiff's 17-year-old son, conducted on November 6, 2018. A.M. gave testimony regarding his observation of the subject accident. Exhibit C is the examination before trial of Carol Reed, NYCHA's witness, conducted on January 3, 2019. It is a duplicate of the exhibit annexed as Exhibit L to NYCHA's motion papers.
LAW AND APPLICATION
NYCHA has moved pursuant to CPLR 3212 for summary judgment dismissing the verified complaint on two grounds. First, NYCHA contends that the plaintiff allegedly gave three contradictory versions of how the subject accident occurred. Second, NYCHA contends that the criminal acts of plaintiff's assailant constituted a superseding and intervening cause of plaintiff's accident. It is noted that NYCHA did not contest or address plaintiff's claim that the subject doormat was improperly placed and improperly secured and created a dangerous condition.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 ).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 ). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).
Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]).
A landowner has a duty to maintain his or her premises in a reasonably safe condition (Arevalo v Abitabile, 148 AD3d 658 [2nd Dept 2017], citing,Walsh v Super Value Ince., 76 AD3d 371, 375 [2nd Dept 2010]). In determining the extent of that duty, the court must take into account circumstances including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Arevalo, 148 AD3d 658, citing Rossal-Daub v. Walter, 97 AD3d 1006, 1007 [3rd Dept 2012]). "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 . . . the landowner affirmatively created the condition or had actual or constructive notice of its existence" (Kerzhner v New York City Transit Authority, 170 AD3d 982 [2nd Dept 2019] citing Lezama v 34-15 Parsons Blvd, LLC, 16 AD3d 560 [2nd Dept 2005]).
Plaintiff's Allegedly Inconsistent Reporting of the Subject Accident
NYCHA claims that the plaintiff told the staff of Brooklyn Hospital Center the following statement of how she was injured. "I slipped in the house and fractured my left pinky." NYCHA based this claim on an entry contained in exhibit F to its motion, a medical records purportedly from Brooklyn Hospital Center.
NYCHA also claims that Police Officer Miklas, in response to an alleged assault, went to the scene of the subject accident and spoke to the plaintiff about the alleged assault incident. NYCHA contends that plaintiff told Officer Miklas that her injury was caused by her assailant. NYCHA's contention is based on the entries in the police aided report, complaint report and Police Officer Miklas deposition testimony.
NYCHA contends that neither the aforementioned hospital record, the police aided report or the complaint report contains any mention by the plaintiff that the accident was caused by tripping or slipping and falling on an unsecured doormat. The Hospital Records
Pursuant to CPLR 4518 (c), a medical report is admissible evidence provided it bears a certification or authentication by the head of the hospital. The two medical records NYCHA submitted do not bear such a certificate of authentication. A defendant may rely on unsworn medical records provided by the plaintiff to the defendant in support of a motion for summary judgment (Kearse v New York City Tr. Auth., 16 AD3d 45 [2nd Dept 2005]). The affirmation of NYCHA's counsel, however, does not set forth the basis for counsel's knowledge that the excerpt from Brooklyn Hospital Center or Brookdale Hospital are what counsel purports them to be. In sum, the records are not affirmed, authenticated or certified. They are, therefore, not in admissible form.
Although the hospital records are not independently admissible, they do provide a good faith basis for NYCHA's confrontation of the plaintiff at her deposition with the allegedly inconsistent versions of the subject accident contained in those documents. Under these circumstances, the medical records are considered for their impeachment value and not for the truth of their content. When confronted with the medical records at her deposition, plaintiff denied that she made the statements contained therein. The Police Reports
At his deposition, Police Officer Miklas identified the aided report and complaint report as documents that he had prepared thus authenticating them. He also testified that the plaintiff told him how she was injured. In particular, plaintiff allegedly told him that during a verbal argument, her assailant pushed her to the floor causing her to break her finger.
At her deposition plaintiff admitted that Police Officer Miklas correctly recounted the statement that she had made to him. However, she went on to explain that when her assailant pushed her, she stepped back to avoid falling. It was only when she stepped back that she slipped and fell on the unsecured doormat. The alleged statement taken by Police Officer Miklas was consistent with plaintiff being involved in a confrontation and being assaulted. It supports NYCHA's claim that the assault played a role in plaintiff's fall, but it does not establish that the dangerous condition of the doormat played no role.
Furthermore, the deposition of plaintiff's son, conducted on November 6, 2018, corroborated plaintiff's story. He testified that plaintiff was in fact retreating from the assailant when she slipped and fell on the subject doormat.
"In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party" (Bank of New York Mellon v. Gordon, 171 AD3d 197, 201 [2nd Dept 2019], citing Stukas v Streiter, 83 AD3d 18, 22 [2nd Dept 2011]). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist (Bank of New York Mellon, 171 AD3d at 201, citing (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept 2005]).
Plaintiff's verified complaint and verified bill of particulars alleges that NYCHA's property was not reasonably safe because the subject doormat was improperly placed and improperly secured in front of an apartment at NYCHA's building. Additionally, plaintiff claims that the doormat created a dangerous condition that caused the subject accident.
The Court, as it must, credit plaintiff's claim that she did not fall due to a push by her assailant. Rather, she slipped and fell due to a trip or slip on an improperly placed and improperly secured doormat when she was retreating from her assailant. In sum, the plaintiff's allegedly inconsistent statements regarding how she was injured merely present a triable issue of fact warranting a trial. Supervening and Intervening Act of Plaintiff's Assailant
NYCHA has moved pursuant to CPLR 3212 for summary judgment dismissing the verified complaint on the basis that the criminal acts of plaintiff's assailant constituted a superseding and intervening cause of plaintiff's accident. NYCHA claims that the altercation by plaintiff's assailant proximately caused and broke the causal connection between NYCHA's alleged negligence and plaintiff's injuries.
When a question of proximate cause involves an intervening act, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence (Hain v Jamison, 28 NY3d 524, 529 , citing Mazella v Beals, 27 NY3d 694, 706 ). Thus, where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed (Hain, 28 NY3d at 529, citing Derdiarian v Felix Constr Co., 51 NY2d 308, 315 ). Rather, the mere fact that other persons share some responsibility for plaintiff's harm does not absolve defendant from liability because there may be more than one proximate cause of an injury (Hain, 28 NY3d at 529, citing Mazella, 27 NY3d at 706). It is only where the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, that it may ... possibly break the causal nexus (Mazella, 27 NY3d at 706 quoting Derdiarian, 51 NY2d at 315). To state the inverse of this rule, liability subsists when ... the intervening act is a natural and foreseeable consequence of a circumstance created by defendant (Hain, 28 NY3d at 529, citing Kush v City of Buffalo, 59 NY2d 26, 33 ).
Although foreseeability and proximate cause are generally questions for the factfinder, there are instances in which proximate cause can be determined as a matter of law because only one conclusion may be drawn from the established facts (Hain, 28 NY3d at 529 , citing Derdiarian, 51 NY2d at 315). Such cases may arise when the plaintiff's injuries are caused by independent intervening acts which operate upon but do not flow from the original negligence (Id.).
Plaintiff's altercation with her assailant was not a natural and foreseeable consequence of NYCHA's failure to remove a doormat from the front door of a tenant's apartment. However, plaintiff's deposition claims that the occurrence of the altercation was an event entirely removed from her slipping or tripping and falling on the improperly placed and improperly secured doormat. She claimed that she stepped back in a controlled way when she was pushed by her assailant. When she stepped back she then slipped or tripped on the subject doormat. Plaintiff's son corroborated plaintiff's version of the event. Upon crediting the plaintiff's version of the accident as corroborated by her son, NYCHA has not established prima facie that the conduct of plaintiff's assailant was a superseding and intervening act which proximately caused plaintiff's injuries. At best, it merely raises a triable issue of fact.
New York City Housing Authority's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint of Amy Michael is denied.
The foregoing constitutes the decision and order of this Court. Enter: J.S.C.