The Appellate Division reversed the granting of defendant's motion for summary judgment, and reinstated the complaint in this action where plaintiff alleges that she was
injured when she fell as the result of a loose step on a
staircase in a building
owned by defendant.
By submitting deposition testimony that no repairs were made to the staircase since defendant acquired the building, defendant made a prima facie showing that it did not cause or
create the loose step.
However, plaintiff's expert raised a triable issue of fact on
this issue. In response to defendant's expert's opinion that "[a]ny motion in the
step[] is imperceptible," plaintiff's expert, who inspected the area
approximately one month after the accident, "observed that the tread
moved and was unstable." Plaintiff's expert opined that the step had
been repaired using a rubber adhesive applied to the tread of the step,
that the repair was done improperly and was inadequate, and that
the "condition had been present for a long period of time." Defendant's
expert failed to provide any rebuttal to this opinion, and defendant did not reply to plaintiff's
expert's opinion when it was raised in
opposition to defendant's motion for summary judgment.
Student note: A defendant moving for summary judgment in a case involving an alleged dangerous condition has the initial burden of making a prima facie showing that it neither created nor had actual or constructive notice of the unsafe condition. When the defendant establishes prima facie entitlement to judgment as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact.
Case: Del Marte v. Leka Realty LLC, NY Slip Op 08626 (1st Dep't December 12, 2017)
Here is the decision.
