Rosario v HP 680 St. Nicholas Hous. Dev. Fund Co., Inc. 2024 NY Slip Op 33439(U) September 30, 2024 Supreme Court, New York County Docket Number: Index No. 159640/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 159640/2022 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/30/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -----------------------------------------------------------------------------X INDEX NO. 159640/2022 MAGALY ROSARIO, MOTION DATE 04/09/2024 Plaintiff, MOTION SEQ. NO. 003 - V -
HP 680 ST. NICHOLAS HOUSING DEVELOPMENT FUND DECISION + ORDER ON COMPANY, INC.,FAIRSTEAD MANAGEMENT LLC MOTION Defendant. -----------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55,56, 57, 58, 59,60,61,62, 73, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
Upon the foregoing documents submitted by Michael J. Glidden, Esq. on behalf of
Defendants HP 680 Nicholas Housing Development Fund Company, Inc. ("680 HDFC") and
Fairstead Management, LLC ("Fairstead") (collectively "Defendants") and by Brett A. Zekowski,
Esq. on behalf of Plaintiff Magaly Rosario ("Plaintiff'), and after a final submission date of July
18, 2024, Plaintiffs motion for summary judgment against Defendants on the issue of liability and
dismissal of Defendants' second and fourteenth affirmative defenses is denied.
I. Background
For a more thorough recitation of the facts, the reader is referred to this Court's Decision
and Order on motion sequence 002.
For purposes of this motion, Plaintiff seeks summary judgment on the issue of liability
against Defendants. Plaintiff argues that as a property owner and an agent of the property owner,
it is undisputed that Defendants owed her a duty to maintain their property in a reasonably safe
manner. Plaintiff further argues that it is undisputed that a hazardous condition existed on the
159640/2022 ROSARIO, MAGALY vs. HP 680 ST. NICHOLAS HOUSING DEVELOPMENT FUND Page 1 of 5 COMPANY, INC., ET AL Motion No. 003
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property as Jennifer Lau, a Fairstead employee, testified that had she observed the missing tread
on the stairs, she would have requested that it be repaired immediately because it could be a
tripping hazard. Plaintiff further argues that although Defendants knew about the missing tread,
they deliberately chose not to warn tenants about it because they thought it would be a "quick fix."
Defendants argue it is undisputed that the missing tread was the proximate cause of Plaintiff's
accident as indicated in her deposition testimony. Plaintiff also argues that Defendants' second
affirmative defense which claims Plaintiff was comparatively negligent should be dismissed, and
asserts that Defendants' fourteenth affirmative defense, that Plaintiff was the sole proximate cause
of her accident should be dismissed.
In opposition, Defendants argue that there are triable issues of fact as to what caused her
to fall. In particular, Defendants point to deposition testimony wherein Plaintiff admits that her
shoes were wet from rainwater and that this played a role in causing her fall. Defendants also argue
that Plaintiff could have used a handicap accessible ramp instead of the allegedly defective stairs
and therefore their affirmative defenses regarding Plaintiff's comparative negligence and whether
she was the sole proximate cause of her accident should not be dismissed.
In reply, Plaintiff argues that her wet shoes cannot be considered a cause of the accident
when the missing tread was a safety device meant to prevent people with wet shoes from slipping.
Plaintiff further argues that Defendants ignore their own witnesses' admissions that the missing
tread constituted an unsafe trip hazard.
II. Discussion
Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499,503 [2012]). The moving party's "burden is a heavy one and
159640/2022 ROSARIO, MAGALY vs. HP 680 ST. NICHOLAS HOUSING DEVELOPMENT FUND Page 2 of 5 COMPANY, INC., ET AL Motion No. 003
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on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial. (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];
Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]). Mere conclusions
of law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North
Am. v Victory Taxi Mgt., Inc., 1 NY3d 381 [2004]).
Viewing the facts in the light most favorable to the non-movant, the Defendants, the Court
finds there are triable issues of fact which preclude granting summary judgment. As a preliminary
matter, there is an issue of fact as to notice. Although Plaintiff asserts that the tread had been
missing for months, one defense witness, Ms. Lau, testified she had no notice of the missing tread.
The other defense witness, Mr. Alejo, testified that three days prior to Ms. Rosario's fall he had
noticed the missing tread and that a replacement tread had been ordered but was still in transit (see
NYSCEF Docs. 31 and 55). Mr. Alejo testified that the tread took a week to arrive and once it
arrived the stairs were remedied immediately (see Zuk v Great Atlantic & Pacific Tea Co., Inc., 21
AD3d 275 [1st Dept 2005] [to constitute constructive notice of a defect, the defect must be visible
and exist for a sufficient length of time prior to the accident to permit the landowner to discover
and remedy it]).
Based on the record before the Court, the conflicting testimony regarding the length of time
the missing tread existed, and whether Defendants had adequate time to remedy the condition prior
to Plaintiffs fall, are issues of fact best left for a jury (Hill v Lambert Houses Redevelopment Co.,
105 AD3d 642 [l st Dept 2013]; Sacca v 41 Bleecker Street Owners Corp., 51 AD3d 586 [I st Dept
159640/2022 ROSARIO, MAGALY vs. HP 680 ST. NICHOLAS HOUSING DEVELOPMENT FUND Page 3 of 5 COMPANY, INC., ET AL Motion No. 003
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2008]). Indeed, aside from Plaintiffs testimony, there is no evidence that anyone ever complained
about the missing stair tread, and even Plaintiff testified she never complained about the missing
stair tread. As held by the First Department, the conflicting accounts of the length of time the
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Rosario v HP 680 St. Nicholas Hous. Dev. Fund Co., Inc. 2024 NY Slip Op 33439(U) September 30, 2024 Supreme Court, New York County Docket Number: Index No. 159640/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 159640/2022 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/30/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -----------------------------------------------------------------------------X INDEX NO. 159640/2022 MAGALY ROSARIO, MOTION DATE 04/09/2024 Plaintiff, MOTION SEQ. NO. 003 - V -
HP 680 ST. NICHOLAS HOUSING DEVELOPMENT FUND DECISION + ORDER ON COMPANY, INC.,FAIRSTEAD MANAGEMENT LLC MOTION Defendant. -----------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55,56, 57, 58, 59,60,61,62, 73, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER
Upon the foregoing documents submitted by Michael J. Glidden, Esq. on behalf of
Defendants HP 680 Nicholas Housing Development Fund Company, Inc. ("680 HDFC") and
Fairstead Management, LLC ("Fairstead") (collectively "Defendants") and by Brett A. Zekowski,
Esq. on behalf of Plaintiff Magaly Rosario ("Plaintiff'), and after a final submission date of July
18, 2024, Plaintiffs motion for summary judgment against Defendants on the issue of liability and
dismissal of Defendants' second and fourteenth affirmative defenses is denied.
I. Background
For a more thorough recitation of the facts, the reader is referred to this Court's Decision
and Order on motion sequence 002.
For purposes of this motion, Plaintiff seeks summary judgment on the issue of liability
against Defendants. Plaintiff argues that as a property owner and an agent of the property owner,
it is undisputed that Defendants owed her a duty to maintain their property in a reasonably safe
manner. Plaintiff further argues that it is undisputed that a hazardous condition existed on the
159640/2022 ROSARIO, MAGALY vs. HP 680 ST. NICHOLAS HOUSING DEVELOPMENT FUND Page 1 of 5 COMPANY, INC., ET AL Motion No. 003
1 of 5 [* 1] INDEX NO. 159640/2022 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/30/2024
property as Jennifer Lau, a Fairstead employee, testified that had she observed the missing tread
on the stairs, she would have requested that it be repaired immediately because it could be a
tripping hazard. Plaintiff further argues that although Defendants knew about the missing tread,
they deliberately chose not to warn tenants about it because they thought it would be a "quick fix."
Defendants argue it is undisputed that the missing tread was the proximate cause of Plaintiff's
accident as indicated in her deposition testimony. Plaintiff also argues that Defendants' second
affirmative defense which claims Plaintiff was comparatively negligent should be dismissed, and
asserts that Defendants' fourteenth affirmative defense, that Plaintiff was the sole proximate cause
of her accident should be dismissed.
In opposition, Defendants argue that there are triable issues of fact as to what caused her
to fall. In particular, Defendants point to deposition testimony wherein Plaintiff admits that her
shoes were wet from rainwater and that this played a role in causing her fall. Defendants also argue
that Plaintiff could have used a handicap accessible ramp instead of the allegedly defective stairs
and therefore their affirmative defenses regarding Plaintiff's comparative negligence and whether
she was the sole proximate cause of her accident should not be dismissed.
In reply, Plaintiff argues that her wet shoes cannot be considered a cause of the accident
when the missing tread was a safety device meant to prevent people with wet shoes from slipping.
Plaintiff further argues that Defendants ignore their own witnesses' admissions that the missing
tread constituted an unsafe trip hazard.
II. Discussion
Summary judgment is a drastic remedy, to be granted only where the moving party has
tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v
Restani Const. Corp., 18 NY3d 499,503 [2012]). The moving party's "burden is a heavy one and
159640/2022 ROSARIO, MAGALY vs. HP 680 ST. NICHOLAS HOUSING DEVELOPMENT FUND Page 2 of 5 COMPANY, INC., ET AL Motion No. 003
2 of 5 [* 2] INDEX NO. 159640/2022 NYSCEF DOC. NO. 95 RECEIVED NYSCEF: 09/30/2024
on a motion for summary judgment, facts must be viewed in the light most favorable to the non-
moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).
Once this showing is made, the burden shifts to the party opposing the motion to produce
evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact
which require a trial. (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980];
Pemberton v New York City Tr. Auth., 304 AD2d 340, 342 [1st Dept 2003]). Mere conclusions
of law or fact are insufficient to defeat a motion for summary judgment (see Banco Popular North
Am. v Victory Taxi Mgt., Inc., 1 NY3d 381 [2004]).
Viewing the facts in the light most favorable to the non-movant, the Defendants, the Court
finds there are triable issues of fact which preclude granting summary judgment. As a preliminary
matter, there is an issue of fact as to notice. Although Plaintiff asserts that the tread had been
missing for months, one defense witness, Ms. Lau, testified she had no notice of the missing tread.
The other defense witness, Mr. Alejo, testified that three days prior to Ms. Rosario's fall he had
noticed the missing tread and that a replacement tread had been ordered but was still in transit (see
NYSCEF Docs. 31 and 55). Mr. Alejo testified that the tread took a week to arrive and once it
arrived the stairs were remedied immediately (see Zuk v Great Atlantic & Pacific Tea Co., Inc., 21
AD3d 275 [1st Dept 2005] [to constitute constructive notice of a defect, the defect must be visible
and exist for a sufficient length of time prior to the accident to permit the landowner to discover
and remedy it]).
Based on the record before the Court, the conflicting testimony regarding the length of time
the missing tread existed, and whether Defendants had adequate time to remedy the condition prior
to Plaintiffs fall, are issues of fact best left for a jury (Hill v Lambert Houses Redevelopment Co.,
105 AD3d 642 [l st Dept 2013]; Sacca v 41 Bleecker Street Owners Corp., 51 AD3d 586 [I st Dept
159640/2022 ROSARIO, MAGALY vs. HP 680 ST. NICHOLAS HOUSING DEVELOPMENT FUND Page 3 of 5 COMPANY, INC., ET AL Motion No. 003
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2008]). Indeed, aside from Plaintiffs testimony, there is no evidence that anyone ever complained
about the missing stair tread, and even Plaintiff testified she never complained about the missing
stair tread. As held by the First Department, the conflicting accounts of the length of time the
defective condition existed raise credibility issues which are to be left for the jury (Melendez v
Alliance Housing Associates, LP., 201 AD3d 437 [1st Dept 2022]). Moreover, it is for a jury to
decide whether it is reasonable under the circumstances for Defendants to have elected to order
replacement tread which would take a week to arrive or if a more expedient alternative could have
been utilized.
Likewise, Plaintiff has not sustained her burden of dismissing Defendants' second
affirmative defense, which asserts Plaintiff was comparatively negligent. The record shows there
was a non-defective ramp which Plaintiff could have used, yet she elected to use allegedly
defective stairs despite knowing that the tread on the top stairs was missing. Moreover, given the
allegedly defect-free ramp available to Plaintiff, there are issues of fact as to whether Plaintiff was
the sole proximate cause of her accident (see e.g. Dillard v New York City Haus. Auth., 112 AD3d
504 [1st Dept 2013]). Although Plaintiff argues this defense is only applicable in Labor Law cases,
it may be applied in slip and fall cases if the plaintiff has a safe alternative route yet decided for
no good reason not to utilize that route ( Williams v Esor Realty Co., 117 AD3d 480 [1st Dept
2014]; Thomas v City of New York, 16 AD3d 203 [1st Dept 2005]).
Accordingly, it is hereby,
ORDERED that Plaintiffs motion for summary judgment against Defendants on the issue
of liability and dismissal of Defendants' second and fourteenth affirmative defenses is denied in
its entirety; and it is further
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ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
9/30/2024 DATE iV) . v (0~'r J!:>C HON. MA~ V. ROSADO, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK JF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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