Romanowski v. Yahr

Appellate Division of the Supreme Court of New York

Romanowski v. Yahr

5 A.D.3d 985, 773 N.Y.S.2d 922, 2004 N.Y. App. Div. LEXIS 3114

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 2004

StatusPublished

Cited by9 cases

This text of 5 A.D.3d 985 (Romanowski v. Yahr) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Romanowski v. Yahr, 5 A.D.3d 985, 773 N.Y.S.2d 922, 2004 N.Y. App. Div. LEXIS 3114 (N.Y. Ct. App. 2004).

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Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered February 26, 2003. The order denied defendants’ motion for summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed with costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when she slipped and fell on the front stairs of defendants’ mobile home. Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Defendants failed to meet tbeir initial [986]*986burden of demonstrating their entitlement to judgment as a matter of law (see CPLR 3212 [b]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “[Defendants submitted no evidence to demonstrate that the stairs were free of defects. Instead, defendants submitted the deposition testimony of plaintiff ] and claim that the testimony fails to establish a defect” (Feldman v Dombrowsky, 288 AD2d 605, 606 [2001]). “A moving party . . . does not meet its burden by noting gaps in [her] opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]). Further, even assuming, arguendo, that defendants met their initial burden on the motion, we conclude that the affidavit of plaintiffs expert is sufficient to raise an issue of fact whether plaintiffs accident resulted from the failure of the stairs to conform to the State Uniform Fire Prevention and Building Code (Building Code) (see former 9 NYCRR 713.1 [b] [4]). Violation of the Building Code constitutes some evidence of negligence (see Elliott v City of New York, 95 NY2d 730, 734-735 [2001]). It is for a juipr to decide whether defendants violated the Building Code and, if so, whether that violation proximately caused plaintiffs accident.

All concur except Pigott, Jr., P.J., and Hurlbutt, J., who dissent and vote to reverse in accordance with the following memorandum.

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Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered February 26, 2003. The order denied defendants’ motion for summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed with costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when she slipped and fell on the front stairs of defendants’ mobile home. Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. Defendants failed to meet tbeir initial [986]*986burden of demonstrating their entitlement to judgment as a matter of law (see CPLR 3212 [b]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “[Defendants submitted no evidence to demonstrate that the stairs were free of defects. Instead, defendants submitted the deposition testimony of plaintiff ] and claim that the testimony fails to establish a defect” (Feldman v Dombrowsky, 288 AD2d 605, 606 [2001]). “A moving party . . . does not meet its burden by noting gaps in [her] opponent’s proof’ (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [1995]). Further, even assuming, arguendo, that defendants met their initial burden on the motion, we conclude that the affidavit of plaintiffs expert is sufficient to raise an issue of fact whether plaintiffs accident resulted from the failure of the stairs to conform to the State Uniform Fire Prevention and Building Code (Building Code) (see former 9 NYCRR 713.1 [b] [4]). Violation of the Building Code constitutes some evidence of negligence (see Elliott v City of New York, 95 NY2d 730, 734-735 [2001]). It is for a juipr to decide whether defendants violated the Building Code and, if so, whether that violation proximately caused plaintiffs accident.

All concur except Pigott, Jr., P.J., and Hurlbutt, J., who dissent and vote to reverse in accordance with the following memorandum.

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5 A.D.3d 985, 773 N.Y.S.2d 922, 2004 N.Y. App. Div. LEXIS 3114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romanowski-v-yahr-nyappdiv-2004.

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