INDEX NO. 152734/2016
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`FILED: NEW YORK COUNTY CLERK 10/19/2018 09:46 AM
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`NYSC.
`3F DOC. NO. 42
`C«.IV«D NYSCEF: 10/19/2018
`NYSCEF DOC. NO. 42
`RECEIVED NYSCEF: 10/19/2018
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`SUPREME COURT OF THE STATE OF NEW YORK
`NEW YORK COUNTY
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`PRESENT:
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`HON. w. FRANC PERRY
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`Justice
`----------------------------------------------------------------------X
`RYAN HICKS.
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`Plaintiff,
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`PART
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`INDEX No.
`MOTION DATE
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`IAS MOTION 23EFM
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`152734/2016
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`MOTION SEQ. NO.
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`-
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`001
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`WRENBROOK REALTY, L.P., WEBB AND BROOKER, INC.
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`'
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`Defendant.
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`DECISION AND ORDER
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`——-—x
`Upon the documents presented to the Court and upon oral argument it is decided that the motion
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`for summary judgment is denied.
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`In the case at bar, plaintiff claims that she was injured as a result Of a trip and fall
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`accident on the interior stairs between the second and third floor of the building located at 204
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`West 149th Street in Manhattan on August 20. 201 5, where she is a tenant. She alleges that
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`defendants were negligent in maintaining the interior staircase handrail. Specifically, plaintiff
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`asserts that as she descended the steps, she was caused to fall when the wooden railing she had
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`been holding onto came off the metal railing to which it was attached. She testified that the
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`wooden railing came Off “in one piece” and came into contact with her legs which caused her to
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`fall backwards, hit her back on the steps and then slide 5-6 steps down to the 2"d floor.
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`Defendants assert that they are entitled to summary judgment as they had no actual or
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`constructive notice of any alleged condition for such a period of time, in the exercise of
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`reasonable care, it should have been corrected. Defendants argue that there is no evidence that
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`they created any defective condition or was on notice of any condition relating to the bannister.
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`Defendants assert that plaintiff testified that she used the staircase and bannister on a regular
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`152734l2016 HICKS, RYAN vs. WRENBROOK REALTY, L.P.
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`INDEX NO. 152734/2016
`FILED: NEW YORK COUNTY CLERK 10/19/2018 09:46 AM
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`NYSC.
`3F DOC. NO. 42
`c«.1v«D NYSCEF: 10/19/2018
`NYSCEF DOC. NO. 42
`RECEIVED NYSCEF: 10/19/2018
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`basis without incident and that no complaints were ever made to them regarding the bannister.
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`Thus, defendants'argue that no triable issue offact exists which would preclude summary
`judgment.
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`Plaintiff opposes the. motion arguing that the evidence presented warrants summary
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`judgment in that she made a complaint about the subject handrail to Jackie Guzman property
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`manager of the building prior to her accident around January or February 2015. Plaintiff testified
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`that she told Ms. Guzman that the handrail was loose and was shifting. Although plaintiff used
`the staircase on a daily basis, she stated that she would only use the handrail sparingly prior to
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`the accident. I
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`In support of her opposition, plaintiff presents the testimony of Dimitry Naylor, Vice
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`President of defendant Webb and iBooker‘. He testified that he had a staff working for him
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`regarding the subject building. Ms. Guzman was an assistant manager-compliance supervisor.
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`Ms. Guzman was responsible for helping run and manage the subject building. There was also a
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`maintenance staff and superintendent, Jose Ginero. The assistant superintendent was Blas Diaz,
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`in addition to two porters. According to Mr. Naylor, the porter and superintendent were
`responsible for cleaning the main staircase and Mr. Diaz was responsible for handling repairs,
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`including broken handrails.
`Mr. Naylor testified that if a tenant had a complaint, the tenant would be instructed to I
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`notify Ms. Guzman. If a tenant had a complaint about a handrail, the tenant would call Ms.
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`Guzman, who would then notify the superintendent. If the superintendent notified her of a
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`problem and she would tell them to fix it or ask if he needed her to call someone else to fix it. It
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`is possible that someone would complain to the superintendent and he would not let Ms. Guzman
`know about it.
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`15273412016 HICKS, RYAN vs. WRENBROOK REALTY, L.P.
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`INDEX NO. 152734/2016
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`FILED: NEW YORK COUNTY CLERK 10/19/2018 09:46 AM
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`NYSC.
`3F DOC. NO. 42
`C«.IV«D NYSCEF: 10/19/2018
`NYSCEF DOC. NO. 42
`RECEIVED NYSCEF: 10/19/2018
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`Ms. Guzman was responsible for conducting inspections of the building in the common
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`areas such as the staircase, which she did such every few weeks. Mr. Naylor went over to the
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`premises “every month or so to see “what was going on”. No records were kept documenting
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`inspections made. After the accident, Mr. Naylor was informed that something was wrong with
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`the bannister and one of the sUperintendents fixed it. He testified that Mr. Diaz would have been
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`the one to fix the bannister. Mr. Naylor does not know if a new bannister was purchased or if the
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`old one was placed back on. He did not recall the last time he had been to the building prior to
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`the accident or the last time the bannister was last checked or inspected.
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`Ms. Guzman is no longer employed by the company. Mr. Dias is also no longer
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`employed, because “he was never at work and for non-performance. Mr. Naylor is not aware of
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`any incident reports or accident reports regarding the incident at bar.
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`Plaintiff has also submitted the affidavit of Ms. Shereece Claxton, another resident of 204
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`West 149‘h Street. Plaintiff informed Ms. Claxton of the accident on the day it occurred. Ms.
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`Claxton stated in her affidavit that she is familiar with the handrail in question, as she has walked
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`up and down the same stairs several times a day for years. She stated that the handrail between
`the second and third floors had been loose and would shift when she would hold onto it for
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`approximately two to three months prior to the plaintiffs incident. She also stated that it was not
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`until after plaintiff's incident that management did anything about the subject handrail.
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`Plaintiff further submitted the affidavit of Stanley Fein, Licensed Professional Engineer
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`who after reviewing photographs of the scene, opined that the building was not maintained in a
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`safe condition and that the handrails was not maintained in good working condition. He also
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`concluded that the loose handrail was extremely dangerous and was the proximate cause of the
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`accident and the injuries sustained by plaintiff.
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`INDEX NO. 152734/2016
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`FILED: NEW YORK COUNTY CLERK 10/19/2018 09:46 AM
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`Nisd
`NYSCEF DOC. NO. 42
`RECEIVED NYSCEF: 10/19/2018
`3F DOC. NO. 42
`RfiCaIVaD‘NYSCEF: 10/19/2018
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`The proponent of a motion for summary judgment carries the initial burden of tendering
`sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter
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`of law (Alverez v. Prospect Hospital, 68 NY2d 320[1986}); Zuckerman v. City ofNew York, 49
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`NY2d 557[1980]). Thus, a defendant seeking summary judgment must establish prima facie
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`entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the
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`merits of the claim or defense, and not by merely pointing to gaps in plaintiff‘s proof (Mondello
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`v. DiStefano, 16 AD3d 637 [2d Dept 2000]).
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`Once movant meets his initial burden on summary judgment, the burden shifts to the
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`opponent who must then produce sufficient evidence, generally also in admissible forrni,_to
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`establish the existence of a triable issue of fact (Zuckerman, at 562).
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`In the case at bar, while movant has met the initial burden of prima facie entitlement to
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`summary judgment, plaintiff has submitted evidence in admissible form showing the existence of
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`triable issues of fact which preclude the award of summary judgment.
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`Plaintiff has presented evidence that she complained of the defective handrail to the
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`building’s management before the incident occurred. In addition, the deposition testimony of
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`defendants’ employees establish that no records of complaints or incidents were kept by them
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`and that they kept no records of inspections of the bannisters in the building. Further, the person
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`responsible for recording and maintaining complaints is no longer employed by defendant.
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`Moreover, the person responsible for repairing broken bannisters was discharged for non-
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`performance of his duties.
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`Considering the evidence in the light most favorable to the plaintiff, multiple factual
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`questions remain, regarding the issues of actual and constructive notice and whether the
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`152734I2016 HICKS, RYAN vs. WRENBROOKREALTY, L.P.
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`INDEX NO. 152734/2016
`FILED: NEW YORK COUNTY CLERK 10/19/2018 09:46 AM
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`NYSCZF DOC. NO. 42
`c«.1v«D NYSCEF: 10/19/2018
`NYSCEF DOC. NO. 42
`RECEIVED NYSCEF: 10/19/2018
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`condition allegedly causing this incident existed prior to the accident, support the denial of
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`defendants’ motion for summary judgment.
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`This is the Decision and Order of the Court.
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`10I1fi2018
`DATE
`CHECK ONE:
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`APPLICATION:
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`-
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`CASE DISPOSED
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`GRANTED
`SETTLE ORDER
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`DENIED
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`CHECK IF APPROPRIATE:
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`INCLUDES TRANSFER/REASSIGN
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`W. FRANC PERRY, J.S.C.
`NON-FINAL DISPOSITION
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`x
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`GRANTED IN PART
`suaMIT ORDER
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`[:1 OTHER
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`FIDUCIARV APPOINTMENT D REFERENCE
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