Toro v McComish, 2024 NY Slip Op 02945 [227 AD3d 1120]

May 29, 2024

Appellate Division, Second Department

[*1]

Carmen I. Toro, Appellant,

v

Donna R. McComish, Respondent.

The Barnes Firm, P.C., New York, NY (Martha M. Pigott, Gregg S. Maxwell, and Christopher J. Trochiano of counsel), for appellant.

Farber Brocks & Zane, LLP, Garden City, NY (Charles T. Ruhl of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated September 10, 2021. The order granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.

On July 31, 2018, the plaintiff allegedly fell while descending a staircase on the defendant’s premises, sustaining personal injuries. The plaintiff commenced this personal injury action against the defendant, who subsequently moved for summary judgment dismissing the complaint. In an order dated September 10, 2021, the Supreme Court granted the defendant’s motion. The plaintiff appeals.

“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 AD3d 560 , 560 [2005]; see Villalba v Daughney , 214 AD3d 843 [2023]). “[W]hether a dangerous or defective condition exists on the property of another so as to create liability ‘depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury’ ” ( Trincere v County of Suffolk , 90 NY2d 976, 977 [1997] [internal quotation marks omitted], quoting Guerrieri v Summa , 193 AD2d 647, 647 [1993]; see Wilks v City of New York , 144 AD3d 673 , 674 [2016]). However, summary judgment in favor of a defendant is appropriate where there is no evidence of a defective condition ( see Wilks v City of New York , 144 AD3d at 674; Witkowski v Island Trees Pub. Lib. , 125 AD3d 768 , 769 [2015]; Lezama v 34-15 Parsons Blvd, LLC , 16 AD3d at 560), or “ ’the plaintiff cannot identify the cause of his or her fall without engaging in speculation’ ” ( Mitgang v PJ Venture HG, LLC , 126 AD3d 863 , 863-864 [2015], quoting Ash v City of New York , 109 AD3d 854 , 855 [2013]; see Vojvodic v City of New York , 148 AD3d 1086 , 1087 [2017]). “Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” ( Villanueva v DJ’s Intl. Buffet, [*2] Inc. , 219 AD3d 863 , 865 [2023] [internal quotation marks omitted]; see Padilla v CVS Pharm. , 175 AD3d 584 , 585 [2019]).

Here, the defendant failed to establish, prima facie, her entitlement to judgment as a matter of law dismissing the complaint based on the plaintiff’s alleged inability to identify what caused her accident ( see Dilorenzo v Nunziatto , 209 AD3d 838 , 839 [2022]; Samuelsen v Wollman Rink Operations LLC , 201 AD3d 490 , 491 [2022]). The defendant also failed to demonstrate, prima facie, that a dangerous condition did not exist on the staircase ( see San Antonio v 340 Ridge Tenants Corp. , 204 AD3d 713 , 715 [2022]).

At the plaintiff’s deposition, a transcript of which was submitted by the defendant in support of her motion for summary judgment, the plaintiff testified that her fall was caused by the fact that the “stairs were not level . . . not straight.” Although the plaintiff testified that she might have lost her balance on either the fourth step from the top of the staircase or the fourth step from the bottom of the staircase, the report of the plaintiff’s expert witness, which was also submitted in support of the defendant’s motion, stated that the treads on the staircase were “uneven and pitched forward,” creating an “inherent walking hazard,” and that the “out-of-level and sloping condition” affected “the entire staircase.” The defendant also failed to establish, prima facie, that she did not have constructive notice of the dangerous condition. A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it ( see Gordon v American Museum of Natural History , 67 NY2d 836, 837-838 [1986]; Mowla v Baozhu Wu , 195 AD3d 706 , 708 [2021]; Vargas v Lamberti , 186 AD3d 1572 , 1573 [2020]). “When . . . ‘a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed’ ” ( Arevalo v Abitabile , 148 AD3d 658 , 659 [2017], quoting Applegate v Long Is. Power Auth. , 53 AD3d 515 , 516 [2008]). “In moving for summary judgment on the ground that [a] defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection” ( Arevalo v Abitabile , 148 AD3d at 660). Here, the evidence proffered in support of the defendant’s motion failed to establish, prima facie, that the nonlevel and sloping condition that allegedly caused the plaintiff to fall amounted to a latent condition and could not have been discovered upon a reasonable inspection.

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985]). Barros, J.P., Christopher, Dowling and Taylor, JJ., concur..