Shalamayeva v. Park 83rd Street Corp.

Appellate Division of the Supreme Court of New York

Shalamayeva v. Park 83rd Street Corp.

32 A.D.3d 387, 820 N.Y.S.2d 607

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

DecidedAugust 1, 2006

StatusPublished

Cited by5 cases

This text of 32 A.D.3d 387 (Shalamayeva v. Park 83rd Street Corp.) 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.

Bluebook

Shalamayeva v. Park 83rd Street Corp., 32 A.D.3d 387, 820 N.Y.S.2d 607 (N.Y. Ct. App. 2006).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County, (LeVine, J.), dated April 13, 2005, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff allegedly tripped and fell over a height differential of approximately 1¾ inches between the concrete walkway and a raised platform area abutting the entrance of [388]*388the defendant’s building. The plaintiff alleged, inter alia, that it was dark outside and that the area was not properly illuminated at the time of the accident.

Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular circumstances of each case and is generally a question of fact for the jury (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). Here, the defendant failed to establish, prima facie, that the difference in elevation between the concrete walkway and the platform was trivial and nonactionable as a matter of law (see Fasano v Green-Wood Cemetery, 21 AD3d 446 [2005]). Moreover, the evidence tendered by the defendant failed to address the plaintiff’s allegations that inadequate lighting was a proximate cause of the accident (see Miner v Northport Yacht Club, 15 AD3d 362 [2005]; Scher v Stropoli, 7 AD3d 777 [2004]; Swerdlow v WSK Props. Corp., 5 AD3d 587, 588 [2004]). Inasmuch as the defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to establish the existence of a triable issue of fact, and the sufficiency of the plaintiffs papers need not be considered (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

The defendant’s remaining contentions are without merit. Florio, J.E, Skelos, Fisher and Dillon, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County, (LeVine, J.), dated April 13, 2005, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff allegedly tripped and fell over a height differential of approximately 1¾ inches between the concrete walkway and a raised platform area abutting the entrance of [388]*388the defendant’s building. The plaintiff alleged, inter alia, that it was dark outside and that the area was not properly illuminated at the time of the accident.

Whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the particular circumstances of each case and is generally a question of fact for the jury (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). Here, the defendant failed to establish, prima facie, that the difference in elevation between the concrete walkway and the platform was trivial and nonactionable as a matter of law (see Fasano v Green-Wood Cemetery, 21 AD3d 446 [2005]). Moreover, the evidence tendered by the defendant failed to address the plaintiff’s allegations that inadequate lighting was a proximate cause of the accident (see Miner v Northport Yacht Club, 15 AD3d 362 [2005]; Scher v Stropoli, 7 AD3d 777 [2004]; Swerdlow v WSK Props. Corp., 5 AD3d 587, 588 [2004]). Inasmuch as the defendant failed to establish its prima facie entitlement to judgment as a matter of law, the burden never shifted to the plaintiff to establish the existence of a triable issue of fact, and the sufficiency of the plaintiffs papers need not be considered (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

The defendant’s remaining contentions are without merit. Florio, J.E, Skelos, Fisher and Dillon, JJ., concur.

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Bluebook (online)

32 A.D.3d 387, 820 N.Y.S.2d 607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shalamayeva-v-park-83rd-street-corp-nyappdiv-2006.

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