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Muniz v SPO Rest., LLC, 2024 NY Slip Op 02822 [227 AD3d 1002]

May 22, 2024

Appellate Division, Second Department

[*1]

Ilene Muniz, Appellant,

v

SPO Restaurant, LLC, Doing Business as Zona De Cuba, et al., Respondents, et al., Defendants. (And a Third-Party Action.)

Law Office of Thomas Iannuccilli, PLLC, White Plains, NY, for appellant.

Gallo Vitucci Klar LLP, New York, NY (Nicholas Vevante of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Bronx County (Elizabeth A. Taylor, J.), dated May 1, 2023. The order, insofar as appealed from, denied those branches of the plaintiff’s motion which were for summary judgment on the issue of liability against the defendants SPO Restaurant, LLC, and Bronx Landmark, LLC, and pursuant to CPLR 3211 (b) to dismiss those defendants’ second and seventh affirmative defenses. By decision and order of the Appellate Division, First Department, entered October 31, 2023, this appeal was transferred to this Court for hearing and determination ( see NY Const, art VI, § 4 [i]).

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s motion which was pursuant to CPLR 3211 (b) to dismiss the seventh affirmative defense of the defendants SPO Restaurant, LLC, and Bronx Landmark, LLC, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained at a restaurant/bar operated by the defendant SPO Restaurant, LLC (hereinafter SPO), and owned by the defendant Bronx Landmark, LLC (hereinafter together with SPO, the defendants). The complaint alleged, among other things, that the plaintiff was injured when the floor on which she was walking collapsed beneath her. The defendants interposed an amended answer, in which they asserted various affirmative defenses, including as the second affirmative defense, comparative negligence and culpable conduct on the part of the plaintiff, and as the seventh affirmative defense, assumption of the risk. The plaintiff subsequently moved, inter alia, for summary judgment on the issue of liability against the defendants and pursuant to CPLR 3211 (b) to dismiss the defendants’ second and seventh affirmative defenses. In an order dated May 1, 2023, the Supreme Court, among other things, denied those branches of the plaintiff’s motion, and the plaintiff appeals.

“A landowner or a party in possession or control of real property has a duty to maintain its premises in a reasonably safe condition” ( Sonera v 147-16 Hillside Ave. Corp. , 207 [*2] AD3d 588, 590 [2022]; see Sloan v 216 Bedford Kings Corp. , 208 AD3d 1192 , 1194 [2022]). “In order for a landowner [or a party in possession or control of real property] to be liable . . . [for a] 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” ( Sloan v 216 Bedford Kings Corp. , 208 AD3d at 1194 [internal quotation marks omitted]; see Steed v MVA Enters., LLC , 136 AD3d 793 , 794 [2016]). “A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” ( Tsyganash v Auto Mall Fleet Mgt., Inc. , 163 AD3d 1033 , 1033-1034 [2018]; see Marazita v City of New York , 202 AD3d 951 , 952 [2022]).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability against the defendants by submitting, inter alia, her own affidavit, which demonstrated that while she was walking on the roof deck of the defendants’ premises, she “suddenly fell through the tile floor which collapsed under [her] right foot.” The plaintiff averred that her right foot went approximately two feet down into a hole in the collapsed floor. In opposition, however, the defendants raised a triable issue of fact by submitting, among other things, an affidavit from their employee, who averred, inter alia, that he witnessed the plaintiff merely “stumble, hit part of a table and then fall to the floor.” The employee further asserted that he created the opening in the floor by removing a portion of a floor tile after the incident. The defendants’ submissions were sufficient to raise triable issues of fact, among other things, as to whether the floor where the plaintiff fell was in a hazardous condition, and whether she simply misstepped ( see Pezzolla v Family Fruit 2, Inc. , 220 AD3d 897 , 898 [2023]). Accordingly, the Supreme Court properly denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the defendants.

Further, the Supreme Court properly denied that branch of the plaintiff’s motion which was pursuant to CPLR 3211 (b) to dismiss the defendants’ second affirmative defense, alleging comparative negligence and culpable conduct on the part of the plaintiff. “CPLR 3211 (b) authorizes a plaintiff to move, at any time, to dismiss a defendant’s affirmative defense on the ground that it ‘has no merit’ ” ( Greco v Christoffersen , 70 AD3d 769 , 771 [2010]). “Thus, when moving to dismiss or strike an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law’ ” ( id. , quoting Vita v New York Waste Servs., LLC , 34 AD3d 559 , 559 [2006]; see Edwards v Walsh , 169 AD3d 865 , 870 [2019]). Here, the plaintiff failed to establish that the second affirmative defense was without merit as a matter of law.

However, the Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3211 (b) to dismiss the defendants’ seventh affirmative defense, alleging assumption of the risk, as the plaintiff established that this affirmative defense was without merit as a matter of law. The plaintiff demonstrated that the primary assumption of risk doctrine, which “is generally limited to risks arising from voluntary participation in athletic and recreational activities” ( Depass v Mercer Sq., LLC , 219 AD3d 801 , 803 [2023]), is inapplicable under the circumstances of this case ( see id. ; Thompson v 1241 PVR, LLC , 104 AD3d 1298 , 1299 [2013]).

The plaintiff’s remaining contentions are either without merit or not properly before this Court. Dillon, J.P., Christopher, Genovesi and Warhit, JJ., concur..