Iacono v. Alboukai

Opinion

Iacono v Alboukai

2026 NY Slip Op 05086

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Nicholas J. Iacono, etc., appellant,

v

Stella Alboukai, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2016-04338, (Index No. 501722/12)

Lara J. Genovesi, J.P.

Linda Christopher

Janice A. Taylor

Donna-Marie E. Golia, JJ.

William Pager, Brooklyn, NY, for appellant.

Fern Flomenhaft PLLC, New York, NY (O'Toole Scrivo, LLC, of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated April 20, 2016. The order granted the defendant's motion to restore her motion for summary judgment dismissing the complaint to the court's calendar and, upon restoration, granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On April 28, 2012, Josephine M. Iacono (hereinafter Josephine) tripped and fell in her Brooklyn apartment (hereinafter the apartment), which was in a building owned by the defendant, Stella Alboukai. Josephine alleged that the accident occurred when her walker caught on a raised door saddle located between the living room and the dining room in the apartment.

On June 29, 2012, Josephine commenced the instant action to recover damages for her personal injuries. On September 30, 2015, following the completion of discovery, the defendant moved for summary judgment dismissing the complaint (hereinafter the summary judgment motion). However, on February 10, 2016, the defendant's attorney failed to appear for oral argument on the summary judgment motion, and that motion was marked off the Supreme Court's calendar. On February 12, 2016, the defendant moved to restore the summary judgment motion to the court's calendar (hereinafter the motion to restore).

In an order dated April 20, 2016, the Supreme Court granted the motion to restore and, upon restoration, granted the summary judgment motion. Josephine appealed. Subsequently, Josephine died, and by decision and order on motion dated June 16, 2021, this Court granted the motion of Nicholas J. Iacono, as administrator of Josephine's estate (hereinafter Nicholas), inter alia, to be substituted for Josephine and to amend the caption accordingly.

"A party seeking to vacate a default in appearing on the return date of a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious motion or opposition to the motion" (Santiago v City of New York, 206 AD3d 948, 949; see CPLR 5015[a]; Pawoor Kim v Xin Chen, 189 AD3d 1061, 1061-1062; Finamore v David Ullman, P.C., 179 AD3d [*2]642, 643). "'Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits'" (World O World Corp. v Anoufrieva, 163 AD3d 610, 611, quoting Young Su Hwangbo v Nastro, 153 AD3d 963, 965). "'The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion, and the court has discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation of the default at issue'" (Santiago v City of New York, 206 AD3d at 949, quoting Pawoor Kim v Xin Chen, 189 AD3d at 1062).

Here, the Supreme Court providently exercised its discretion in granting the motion to restore, as the record reflects that the defendant's attorney had a conflicting court appearance on the date of oral argument on the summary judgment motion, had obtained the court's permission for an adjournment subject to Josephine's attorney's consent, and had relied upon representations made by the calendar clerk in Josephine's attorney's office that Josephine's attorney would sign a stipulation of adjournment and submit it to the court during the scheduled oral argument. The record further reflects that, upon learning of her default, the defendant's attorney filed the motion to restore within two days of the default. On these facts, and in the absence of any alleged prejudice to Josephine or willfulness on the part of the defendant, the court providently exercised its discretion in granting the motion to restore (see Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784, 787; Nunez v Olympic Fence & Railing Co., Inc., 138 AD3d 807, 808; Kramarenko v New York Community Hosp., 134 AD3d 770, 772).

The Supreme Court also properly, upon restoration, granted the summary judgment motion. "'An owner of land has a duty to maintain his [or her] property in a reasonably safe condition'" (Luttenberger v McManus-Lorey Funeral Home, Ltd., 200 AD3d 671, 671, quoting Locke v Calamit, 175 AD3d 560, 561; see Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872). "'However, there is no duty to protect or warn of conditions that are not inherently dangerous and that are readily observable by the reasonable use of one's senses'" (Luttenberger v McManus-Lorey Funeral Home, Ltd., 200 AD3d at 671, quoting Costidis v City of New York, 159 AD3d 871, 871; see Locke v Calamit, 175 AD3d at 561; Graffino v City of New York, 162 AD3d 990, 991). Here, the defendant established her prima facie entitlement to judgment as a matter of law through the submission of a transcript of Josephine's deposition testimony, photographs of the door saddle in question, and an expert affidavit of Mark I. Marpet, all of which established that the condition of the door saddle that allegedly caused Josephine to fall was open and obvious, readily observable by those employing the reasonable use of their senses, and not an inherently dangerous condition (see Luttenberger v McManus-Lorey Funeral Home, Ltd., 200 AD3d at 671; Locke v Calamit, 175 AD3d at 561; Coppola v Cure of Ars R.C. Church, 119 AD3d 726, 726). Notably, Josephine's testimony established that she was aware of the alleged defective floor condition for approximately five years prior to her accident. Contrary to Nicholas's contention, the defendant was permitted to rely upon the transcript of Josephine's deposition testimony, despite the fact that it was unsigned, as the record reflects that the defendant forwarded that transcript to Josephine's attorney for her review but that Josephine failed to sign and return it within 60 days (see CPLR 3116[a]; Baptiste v Ditmas Park, LLC, 171 AD3d 1001, 1002; Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 51; David v Chong Sun Lee, 106 AD3d 1044, 1045). In opposition to the defendant's prima facie showing, Josephine failed to raise a triable issue of fact.

Nicholas's remaining contentions either are without merit or need not be reached in light of our determination.

GENOVESI, J.P., CHRISTOPHER, TAYLOR and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court