Howe v. Flatbush Presbyterian Church

48 A.D.3d 419, 852 N.Y.S.2d 189

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 2008
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Johnson, J), dated March 28, 2007, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff was injured when he fell down a stairway on premises owned by the defendant. The defendant failed to make a prima facie showing of its entitlement to summary judgment. “A plaintiffs inability to identify the cause of his or her fall is fatal to his or her cause of action” (Jackson v Fenton, 38 AD3d 495 [2007]). However, contrary to the defendant’s contention, the plaintiff testified at his deposition that he was caused to lose his balance on the stairway when one of the steps, which was loose, moved forward as he placed his foot upon it. The plaintiff further testified that the handrail was unstable and that he was forced to let go of it to avoid injuring his hand. Thus, the defendant failed to make a prima facie showing that the staircase was not in a hazardous condition and that the plaintiffs fall was not proximately caused by its negligence in failing to remedy these defects (see Jackson v Fenton, 38 AD3d at 496; Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2005]; Swerdlow v WSK Props. Corp., 5 AD3d 587, 587-588 [2004]).

The defendant also failed to make a prima facie showing that it did not have actual or constructive notice of the alleged defective condition (see Indence v 225 Union Ave. Corp., 38 AD3d 494, 495 [2007]; Jackson v Fenton, 38 AD3d at 496; see generally Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).

The defendant’s remaining contentions are without merit.

Motion by the respondent on an appeal from an order of the Supreme Court, Kings County, dated March 28, 2007, inter alia, to strike point IV of the appellant’s brief on the ground that it contains an argument raised for the first time on appeal. By decision and order on motion of this Court dated July 10, 2007 [2007 NY Slip Op 73308(U)], that branch of the motion which was to strike point IV of the appellant’s brief was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is

Ordered that the branch of the motion which was to strike point IV of the appellant’s brief is denied. Ritter, J.P., Miller, Dillon and Angiolillo, JJ., concur.