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Brooklyn Accident Attorney PreparationHere is an example of the exhaustive case preparation performed by Subin Associates for this Brooklyn case:
STATE OF NEW YORK ) COUNTY OF NEW YORK)SS.: Brooke Lombardi, Esq., being duly sworn, deposes and says, under the penalty of perjury and upon information and belief: That I am associated with the attorney for the plaintiff herein and am familiar with the facts and circumstances herein, except as to those alleged upon information and belief, and as to those I verily believe them to be true. That I submit this Affidavit in Opposition to the defendants’ {Bedford Gardens, Kraus Management}2 motion for an order pursuant to CPLR §3212 dismissing plaintiff’s complaint. The defendant’s motion should be correctly denied in all respects. Of the varied reasons requiring denial of the motion, the defendant’s request for summary judgment must fail based upon {inter alia};
These reasons and additional grounds for denial of the motion are discussed herein below. Brief Summary of the Incident The plaintiff sustained life threatening and irreversible injuries as a result of an incident that occurred on March 19, 2008, for which she commenced this action after plaintiff became involuntarily trapped inside a dark portion of the basement known as the ‘carriage room’ inside the premises owned, operated, controlled, and maintained by defendants, their agents, servants, and/or employees. The plaintiff’s entrapment occurred upon plaintiff entering the carriage room while {unbeknownst to her} the knob on the only door to said space was in a defective condition and prevented plaintiff from escaping the enclosed, small, dark, space. As the [automatic/self-closing] door locked behind plaintiff after she entered the room, upon the door knob falling off in her hand when she attempted to leave, plaintiff was confined. Confined, all the way down in the basement, with the only building attendant at lunch with the building’s key to the carriage room, panic settled into plaintiff as she realized she was trapped, without a phone, or surveillance/emergency system to call for help, in a dimly lit space, and under the additional perceived risk of bites and/or infection by rodents known to exist in said space, afflicting plaintiff with severe stress for over an hour, the plaintiff suffered a stroke [and other serious injuries] as a result of her foreseeable confinement. Prior to the incident, defendant had actual notice that the broken knob was defective and required repair and defendants’ failure to repair same and/or properly and safely repair same caused plaintiff to become an innocent hostage and sustain injuries to her emotional, mental and physical health. The record also indicates that defendant had constructive notice of the defective condition and that defendant negligently breached its admitted duty to plaintiffs’/tenants. Although arguably, unnecessary by virtue of the fact that defendant’s own submissions demonstrate questions of fact requiring denial of the motion, the submissions attached hereto precludes dismissal of the complaint. Exhibit “A”5 attached hereto reads as follows: “On March 19, 2008 I was a tenant at 94 Ross Street in Brooklyn, New York. I am aware that on March 19, 2008 Rachel Rosenbaum was trapped in the carriage room in the basement of 94 Ross Street. On February 28, 2008, I was inside the carriage room of 94 Ross Street attempting to leave when I attempted to turn the doorknob it came off in my hand. The lighting in carriage room was very dim. After repeated tries I could not get the carriage room door to open. I used my cell phone to call for help. Within a day of being trapped I spoke to Guillermo Castro, property manager for 94 Ross Street, and told him that the carriage room doorknob was broken. He promised me he would see that the door was fixed. On the evening of the March 19, 2008 after I learned Mrs. Rosenbaum had been trapped, I went to the carriage room and I saw the inside doorknob was missing”. This statement [exhibit “A” hereto] under the penalty of perjury, in and of itself, provides evidence of actual notice to the defendants by their agent/employee Mr. Castro6. At a minimum, Exhibit A attached hereto, viewed with the entire record demonstrates the existence of factual and credibility issues requiring a trial. Ultimately, the exhibits proffered by plaintiff serve basically to bolster the grounds for denying the defendants motion as the defendant’s own submissions and moving papers provide reason alone to deny defendant summary judgment. (I). Discussion of Evidence Demonstrating Defendants Failure to Meet its Required Burden Defendant’s own submissions preclude a grant of the relief defendant seeks. Significantly, the transcripts of the sworn testimony of the parties preclude a grant of the relief sought, to the extent same do not demonstrate, prima facie, that defendant was negligent as a matter of law for negligently causing plaintiff’s foreseeable demise. (i) Testimony7 of Plaintiff Rachel Rosenbaum Regarding, the following matters, plaintiff testified in pertinent part as follows; (a) The carriage room and the door Tenants needed to use a key to get into the carriage room [exhibit F, Page 83 lines 17-25]. The key was only utilized for entering the carriage room, not exiting [exhibit F, Page 91 lines 24-25; pg.92 lines 2-5]. The carriage room is separated into two portions, one small room for bikes and one small space for carriages. Exhibit F, Page 88 lines 22-25. The only door to the carriage room closes automatically [Exhibit F, Page 90 lines 9-11] There is no lock and no use for the key on the surface of the subject door on the inside of the carriage room [Exhibit F, Page 91 lines 23-25; pg.92 lines 2-5]. (b) The confinement8 Plaintiff turned on the dim light, entered the carriage room, pushed her grandchild’s carriage in front of her into a storage space, and the door closed automatically behind her. See; Exhibit F, Page 90 lines 3-15. Then, plaintiff, attempting to leave, tried to use the doorknob and the knob fell off the door into plaintiff’s hand [Exhibit F, page 91 lines 4-19]. Before plaintiff was free, the super had to resort to breaking down the door to the carriage room [Exhibit F, Pages 94-95]. Plaintiff tried to slip the doorknob back into the hole it came off of but the knob would not fasten to the hole and “just kept turning and turning” [Exhibit F, Page 91 lines 18-22]. With this, plaintiff made no further efforts toward the door knob and instead started “screaming for help” in “panic” [Exhibit F, Page 92 lines 21-95 & pg. 93 line 2]. She also banged on the door itself9 while screaming for help [Exhibit F, Page 92 lines 24-25& pg. 93 lines 10-19]. (c) The stroke Plaintiff described the “reason[s]” 10for her stress and/or “pani[c]”11 while trapped in the carriage room. The reasons stated are as follows; The carriage room was “very dark” while plaintiff was trapped “in there” with only “a 15 watt bulb to light the carriage room” [Exhibit F, Page 96 lines 3-7]. Although there is one small window in the basement, it is so dirty that no light comes in from it from outside and plaintiff could not see outside through the window [Exhibit F, Page 88 lines 4-14]. Notably, that sole window is located above the laundry12 machines and the record shows the laundry to be located in the basement but not inside the carriage room, thus, the plaintiff could not even access the window while she was locked inside the carriage room. While trapped in the basement, plaintiff did not have a cell phone on her person to call for help [Exhibit F, Page 90 lines 16-24]. Plaintiff testified that while she was still “inside the carriage room”13 she “sudden[ly]” “had a very sharp pain” in her “head” 14she described as a “terrible headache”15. While she experienced this “headache” plaintiff simultaneously experienced “a lack of sensation on [the] left side” of her body and could not see “anything” out of her left eye [Exhibit F, page 39 lines 2-9, 7-11]. Plaintiff “kn[e]w” the building suffered from “both” “mice” and “water bugs” in the basement [Exhibit F, Page 96 lines 15-17]. While trapped inside the carriage room plaintiff “heard” “both” mice and/or waterbugs [Exhibit F, page 96 lines 13-17] {emphasis added}. She stated there “were mice running around” [Exhibit F, 96 lines 10-11] based upon her knowledge of the mice infestation the building suffered from and because while trapped, she “saw things running on the floor” [Exhibit F, Page 96 lines 10-17]. Plaintiff was trapped inside the small, dark space screaming for help for approximately ONE (1) HOUR and/or “a good hour at least” before her pleas were heard16. After a person {notably, not the porter or defendant’s employee or agent} passing through the basement finally heard plaintiff’s hour long sounds17 for help, plaintiff had to wait minutes longer before the super came downstairs and then wait more time for the super to figure out how to open {break open} the door to the carriage room so as to free plaintiff18. Although upon being freed from her entrapment, plaintiff boarded the elevator and headed toward her apartment on the fifth floor, once she came upstairs, she experienced a sensation she described as if she “felt [her] head drooping to the floor between her feet” [Exhibit F, page 97 lines 10-17]. Notably, once on the fifth floor, plaintiff had to sit down before making it into her apartment [Exhibit F, Page 98 lines 3-17]. Luckily, after sitting down momentarily, plaintiff encountered a neighbor who had to escort plaintiff to plaintiff’s apartment door [Exhibit F, Page 97 lines 3-15]. When she arrived in her apartment she had to explain to her children why she was missing for “so long”19 and explained it was because she was trapped in the carriage room. After this brief exchange20, and unable to ignore his mothers visible pain21, her son called an ambulance for plaintiff22. Testimony in the record shows that other residents had problems with the lock on the carriage room door prior to plaintiff’s incident. [Exhibit F, page 100 lines 18-24; pg. 103 lines 2-18; pg.105 lines 3-11]. Indeed, testimony reflects that plaintiff was not the first person to be struck in the carriage room because of the faulty knob/lock/door [Exhibit F, page 101 lines 13-14; pg 105 lines 3-11]. Since prior to the incident, plaintiff had a non eventful23 and because her “terrible”24 condition was immediately observable25 such that an ambulance was called at once upon her son learning of her plight and that she was “not feeling well”26, the record is bare of any other activity or event that could have precipitated the stroke. (ii) The Work Orders As an initial matter concerning the May 2006 work orders attached at exhibit K to defendant’s motion, the only copies of work orders attached to defendant’s motion are those marked and referred to during party depositions. Defendant inexplicably fails to proffer an affidavit from a person with sufficient knowledge describing the production, filing, and keeping of work orders. Arguably, no probative evidence is submitted demonstrating that the work orders produced by defendants {from dates in 2006} and marked during depositions conclusively establishes the absence of other complaints of the door/carriage room/knob prior to March 19, 2008. Indeed, a careful review of the testimony of Castro and Acevedo {defendants’ agents} shows that verbal complaints concerning the subject door could likely fail to result in a written work order. And, such testimony also presents a situation where situations/complaints involving the door were reported to security and never communicated and/or transformed into a written complaint and/or a written repair/work/order. Since Castro and Acevedo were not the persons responsible for all work/repairs on the doorknob, these witnesses have failed to demonstrate that work orders were not issued for the door {whether completed or not}after May 2006 but before March 2008. That Castro happened to be involved with the May 2006 work order is not prima facie proof that no other work orders issued from complaints regarding the door knob after May 2006. This Court should reject defendant’s contentions that the work orders generated 22 months prior to the plaintiff’s confinement are “too remote in time to constitute sufficient notice” to inculpate defendant. Defendant’s contention not only fails to exculpate defendant, but serves to further inculpate defendant because as much as the work orders show defendants’ notice 22 months prior, the same order shows defendant has no proof {as required by internal procedures} that the needed repair was completed. Thus, the same work orders just as easily show that defendant knowingly and negligently permitted the door knob to remain broken on a self closing door, thus constituting a trap for tenants, for almost 2 years, in violation of defendants admitted duty to repair defective/broken conditions such as a broken door knob on a self closing door in the basement. Both Castro and Acevedo, in their respective testimony, fail to lay a satisfactory statutory27 evidentiary foundation for the work orders. See; Exhibit I, Page 107-10828. Nevertheless, Defendant submits the work orders in support of the {unsupported} assertion that the orders show the only complaint regarding the door/knob was 22 months prior to the accident. However, admissibility concerns aside, same exhibits must also be viewed as proof that the work order issued approximately 22 months prior to the incident was not completed. As defendants concede it owed a duty to repair the knob and/or respond to complaints, and since defendant fails to produce proof it fulfilled that duty, but defendant submissions can be viewed as indicating the contrary, certainly defendant’s own submissions fail to eliminate triable questions. (iii) Testimony from Defendants’ Witnesses’ Short of meeting defendant’s prima facie burden, defendant’s submission of the testimony of its employee/agents; Castro29 and Acevedo30 demonstrates the existence of factual and credibility issues in the record requiring a trial. Reading all the transcripts {including plaintiffs’} attached to defendant’s motion in a light most favorable to plaintiff as the non moving party, there are un-ignorable questions of fact presented in the very submissions of the movant. To the extent this Court is not persuaded that the testimony attached to defendant’s own motion fails to eliminate if not actually presents factual issues of notice and/or creation of the condition, at a minimum, same testimony presents questions of credibility requiring a trial. Defendants’ witnesses testified in pertinent part as follows;
Guillermo Castro- The Property Manager Castro, was the property manager31 for the subject premises32 on March 19, 2008. Castro testified in pertinent part as follows; Checking and/or inspecting the doorknobs in common areas, including but not limited to the inside of the carriage room was not part of the custom and practice of the building superintendent {Acevedo}. See; Exhibit I, pages 21 & 28. Curiously, although Castro initially denied knowledge of any prior tenant complaints of a broken door knob or confinement in the carriage room, the witness’ own testimony belies his lack of knowledge. For example, when Castro is asked when he first learned of Mrs. Rosenbaum’s entrapment, Castro is confused as to which incident he is suppose to be discussing. See; Exhibit I, page 147 lines 3-7. If Castro indeed lacked knowledge of other prior and/or similar incidents, then he should not be confused as to the incident he is being questioned about. Although admittedly the building supervisor at the time of the work orders, Castro denied knowledge of whether the repair was performed. Exhibit I, Page(s) 123 lines 20-25 –p 124 line 2. Not all complaints and/or needed repairs that are called in and/or verbally stated are actually written up as work orders. Exhibit I, Page 114 & Page 117 lines 3-10. The building supervisor could not deny tenants made complaints regarding the doorknob, door or instances of confinement to security personnel. Exhibit I Pages 129-133, 135-136. The whiteness’ transcript raises an arguable question as to whether the work orders of May 2006 were improperly assigned to a handyman for repair rather than a member of the maintenance staff. See Exhibit I, pages 57, 72, 73, Suspiciously, Castro initially denied knowledge of the work order dated 5/11/06 and/or 5/12/06, but later admitted that he personally reported the broken door knob thereby triggering the issuance of the work order. See Exhibit I, pages 78, 82, 92. What’s more is that after denying knowledge as to the broken door knob and/or work order, and then contradicting such testimony with an admission that he issued the complaint regarding the knob, Castro admitted to reviewing the same work order(s) prior to his deposition. See Exhibit I, pages 87-88. Certainly, this witnesses’ credibility is a proper matter for a jury to determine. Pedro Acevedo- The Superintendent of the Building Pedro Acevedo {aka “Junior”} was the superintendent of the subject building on March 19, 2008. See; Exhibit “H”33 page 14. In the event of an emergency tenants were required to report same to the one (1) porter on duty or to Acevedo. Exhibit H, Page 16 lines 20-25 & Page 17. They would have to locate the porter or go to the super’s apartment in the building to report same. Exhibit H, Page 17. At the time of plaintiff’s entrapment, Acevedo was not working inside the building and the only other person “attending to the building” [Mr. Gomez the porter] was on lunch break. See; Exhibit H, Pages 42-43. In addition to the carriage room, the basement also contained the trash-compacter, laundry machine(s), and boiler room et al. Exhibit H, Page 21 lines 4-9. Only about (15) fifteen feet separated the carriage room from the garbage compacter in the basement. See; Exhibit H, page 33. The subject door is a metal fire door measuring approximately 8 feet high and 3 feet wide, and approximately an inch and a half thick [Exhibit H, Page 31]. Doorknobs were on both sides of the door. Exhibit H, Page 31 lines 24-25. The subject door is the only door to enter the carriage room and bicycle room. The tenants entered this door with the key they were provided by the owner. Exhibit H, Page 25 lines 3-.18. Three metal hinges are on the door, on the opposite side as where the knob is located. Exhibit H, Page 32 lines 2-15. The lock on the door, located only on the outside of the door and not on the inside of the carriage room, required a key. Exhibit H, Page23. Besides its less than spacious dimensions, the carriage room is cramped with carriages, bicycles, and boxes full of stored items such as books. Exhibit H, page 21. The carriage room was improperly used as a storage area for said boxes with the knowledge of the owners and/or their agents. Exhibit H, Page 21. No evidence exists showing defendants attempted to abate this cramped condition prior to the incident. Acevedo lacks personal knowledge as to whether the work order(s) issued in May 2006 was completed [Exhibit H, Pages 26-28]. Acevedo lacks personal knowledge as to whether the owner knew of tenant complaints regarding mice and bugs in the subject basement. Exhibit H, Page 34. Plaintiff was noticeably frantic, flushed, sweating, and breathing heavily while trapped inside the space [Exhibit H, pages 45& 48]. Acevedo’s sworn testimony regarding his repair of the doorknob subsequent to Mrs. Rosenbaum’s incident is contradicted by Castro’s sworn testimony. Compare; Exhibit H, pages 49-52 & Exhibit I pages 149-156. As the witnesses’ provide vastly different accounts of the condition of the knob at the moment of plaintiff’s rescue and actions taken regarding the knob subsequent to the incident, the credibility of both witnesses proves wanting and such credibility questions should be resolved at trial.
(II) Discussion of Elements of Plaintiffs’ Negligence Claims Contrary to defendant attorneys’ contentions, the plaintiff’s action is indeed sustainable against defendants as the record demonstrates the absence of issues of fact as to the elements of plaintiff’s negligence claim. Since defendant’s duty is conceded34, the plaintiff discusses the elements of notice and forseeability herein. (i) The Existing Hazard Although the testimony cited above provides illustrative of the “trap” that the broken door knob and carriage room presented, and the hazard that plaintiff suffered under the circumstances, the following is also noted; The space plaintiff was confined in measured approximately 15 x 20 feet. Exhibit “F”, Page 89. The metal fire door is a self closing door. Exhibit I, page 161. After opening the door with a key and walking inside to the carriage room, the door automatically closes behind the tenant. Exhibit I, Pages 119, 123 {emphasis added}. There is no video surveillance in the basement carriage room. Exhibit I ,page 122 lines 20-23. Any purported “emergency hotline” 35was not reachable from the carriage room unless a tenant had a phone with them, and plaintiff did not. Defendants’ witnesses did not directly contradict plaintiffs’ testimony regarding the lighting or the vermin/ bug conditions in the basement. See Exhibit I, pages 121, 120, 16636, 169. In fact, the property manager admitted to complaints of vermin & mice in common areas of Bedford Gardens. Exhibit I, page 170. Testimony in the record {Exhibits “F” & “G”}shows the lighting in the space was dim and insufficient. Plaintiff could not free herself as the broken door knob and the heavy door made her escape impossible. For example, testimony shows Junior Acevedo had to use a crowbar like tool to attempt to break open the lock. After a few unsuccessful attempts to pry open the door, he instructed plaintiff to move out of the way so he could kick the door open to free her. [Exhibit “G” Page 23 lines 2-8]. Acevedo had to push the door, and push it more, before kicking it open [Exhibit “H”, page 46]. (ii) Actual Notice The Affidavit of the disinterested witness attached hereto at Exhibit “A” demonstrates defendants had actual notice that the knob was defective and that such defect constituted a trap to persons using the carriage room. Plaintiff Akiva Rosenbaum’s testimony37 establishes actual notice. Mr. Rosenbaum was trapped inside the carriage room approximately one (1) month prior to March 19, 2008. He became trapped after entering the carriage room, the self closing door shitting behind him, and then when he attempted to leave the door knob fell off the door. Unlike his wife, Mr. Rosenbaum had a cell phone with him and was able to call a neighbor to come down and use her key38 to free him using the lock he originally used to enter. See Exhibit “G”, page 25 lines 5-24 & page 26 lines 6-9. Mr. Rosenbaum noted that the only reason he did not panic {as his wife did} while trapped was because he was only inside for mere minutes and all the while he knew Mrs. Deutsch was on her way down to free him with her key. Exhibit G, page 25 lines 21-24. Notably, Mr. Rosenbaum indicated a lack of ability to see his surroundings while trapped inside the carriage room because of the poor lighting. Exhibit G, page 27 lines 16-18. Mr. Rosenbaum verbally told the super, Junior that he had been trapped in the carriage room because the “door” was broken [Exhibit G, page 25 line 25 page 26 lines 2-9]. After his brief entrapment but prior to his wife’s incident, Mr. Rosenbaum also expressed his concern about insufficient lighting in the basement/carriage room area [Exhibit G, page 27 lines 14-21] As the record at least indicates that other tenants [i.e. Teitlbaum(s); Weingarten(s); Berkowitz39; Silverstein(s)40; Lichenstein(s)41} at 94 Ross Street complained of the carriage door, complained of entrapment in the carriage room, or experienced problems with either or both, there are arguable existing questions of notice for a trial. Notably, the building superintendent failed to testify with sufficient knowledge as to the absence of prior complaints by other tenants at 94 Ross Street regarding the carriage room door. Indeed, Castro actually testified his tendency to confuse the “people” in the building. Exhibit I pages 144-146. to the extent defendants witnesses deny multiple tenants {such as; Silverstein, Weingarten, Lichenstein, Berkowitz, Teitlebaum} in the building complained of the defect/trap, an issue of credibility is presented, providing for introduction of other evidence at trial on this matter. Defendants have also failed to produce any evidence demonstrating the absence of complaints by tenants in the building regarding the trap/defect that may have been reported to security rather than to the super.42 A review of the defendant attorney affirmation proves internally inconsistent on the matter of prior tenant complaints. Although defendants’ witnesses deny prior complaints were made to them personally, the motion papers attempt to temporally categorize these allegedly non existent complaints as levied after the accident43. This Court should not allow such internal inconsistency to serve as an argument and/or evidence of a lack of actual prior notice. Even so, such defendant contentions are of no moment considering the proof of actual notice attached hereto as Exhibit A.
(iii) Constructive Notice Momentarily putting aside the fact that the evidence as to actual notice in the record arguably renders the discussion of constructive notice moot, the plaintiff submits that defendant has failed to make its required showing on the issue of constructive notice, just as defendant has faield to meet its burden as to actual notice. Defendant attorney’s contentions that the work orders in 2006 “clearly”44 show the repair to the door were completed are belied by very submissions attached to the motion. Contrary to defendant attorneys contentions, the work order was not “too remote in time”45 to serve as actual and/or constructive notice of the defective door. Notably defendant provides no decisional law in support of such contention. Nevertheless, assuming for the purposes of discussion only that the May 2006 work orders are ‘too remote’ to serve as actual notice, because there is no proof the work orders were performed and/or performed properly, same evidence demonstrates at least a question as to constructive notice. Given that the work order was issued in 2006, and concededly, no follow up on completion of same was performed on a supervisory level after issuance of same and/or prior to plaintiff’s confinement46, there is arguably a question as to whether the door knob existed in a hazardous and defective condition for a sufficient period of time that in the exercise of diligence, defendants should have discovered same. Viewing the work order, the ‘complaint description’ reads “Repair Carriage Room Door Lock”. The ‘complaint’ was allegedly reported by Castro. See Exhibit “1” included at Exhibit “K”. A review of Exhibits “1” & “2” {as marked during depositions} at defendant Exhibit K shows that the work orders dated 5/11/06 & 5/11/06 respectively are not signed by Santiago. The document is devoid of any handwritten or even typed description of the work that was required to complete {if at all} the work order. Indeed all documents attached at Exhibit “K” are devoid of any description for parts, materials, or otherwise that were used and/or necessary for completion {if any} of the work order(s) despite the fact that there is considerably large space provided for such a write up from the person the order is assigned to. Indeed, the bottom of Exhibit “1” shows that a total of ZERO (0.00) hours were spent by Santiago on the repair.’ The fact that Exhibit “1” reads “Description of Work Order Completed” under which it reads “5/16- Installed On Door Lock Knob” followed by “Handyman Santiago” does not demonstrate that the doorknob or lock were actually repaired. It strains logic that a “repair” could be “Completed” rather than “outstanding” where ZERO hours were spent. The same problem presents at Exhibits 2-4 attached at Exhibit K. Although the orders provide a JOB TIME LOG, the orders attached at Exhibit K are devoid of any hours spent by Santiago on the repair. The work orders at Exhibit K purport to assign the work to “HANDYMAN” Santiago. Un-contradicted testimony in the record shows that after an employee such as a Handyman “completed” a work order for defendants that worker was required to write a brief description of work done, time started the work, and time completed. Such employee, handyman, etc., was “required”47 to sign the work order and return it to the property manager or Kraus workshop as proof the job was completed [Exhibit H page 82 line 25 page 83 lines 2-24]. Acevedo confirmed that in his experience as a superintendent for defendants’ property, the subject work order(s) [at Exhibit K] are NOT complete. See; Exhibit H Page 83 line 25, page 84 lines 2-4. Acevedo conceded the subject work order(s) lacked any signature from the ‘handyman’ assigned to the repair/work order and lacked any written description [exhibit H, Pages 81 & 84]. Castro did not characterize the ZERO hours listed as a mistake. See; Exhibit I, Page 107. This, together with Castro’s other testimony and Acevedo’s regarding the work order should be a concession that the work order was never completed. Viewing the record in a light most favorable to plaintiff {non moving party}, the record fails to demonstrate the absence of a triable issue as to whether the knob was ever repaired pursuant to the 2006 work orders. To the extent the knob was not repaired, the door knob remained in disrepair and the carriage room existed as a trap for approximately 22 months prior to the accident. Although the evidence tends to show the knob was never repaired after the 2006 work order, even if it was, the defendants failed to submit any evidence that work performed by Santiago did not exacerbate the already hazardous condition of the knob. (iv) The Entrapment and the Stroke Were Foreseeable Occurrences The forseeability analysis herein turns upon the facts and circumstances unique to the situation herein. Contrary to defendant’s contentions, the plaintiff did not sustain a stroke “SOLELY” as a result of a loose doorknob. Rather, plaintiff’s stroke was precipitated by the acute emotional stress inflicted upon plaintiff as she remained trapped in the small, dark, infested space for over an hour. This confinement resulted from the defendant’s failure to repair the door knob on a self closing heavy, fire door, which existed as the sole means of ingress and egress to the carriage room. Ironically, defendant’s own witness testimony precludes a finding that defendant met its initial burden as to forseeability. During his deposition, defendant’s building supervisor thought it probable that a tenant complaining of being trapped in the carriage room would indeed, simultaneously be requesting the repair of the door to that carriage room, by virtue of lodging a complaint of being locked inside. See; Exhibit I page 41 lines 6-14. As such, defendant’s building supervisor immediately made the connection that a tenant’s confinement in the carriage room would occur because of a broken door knob. Thus, contrary to defendant’s contentions48, the “reasonable foresight” allegedly required is present herein. Further, Castro’s testimony shows that confinement and damage resulting to plaintiff from said confinement proves “plausible” or even “likely” where, as here, the knob is broken. This testimony undermines the contentions by defendant attorney regarding forseeability49. As such, defendant has failed to meet its prima facie burden as to forseebaility and the motion should fail without reaching the sufficiency of plaintiff’s evidence in opposition. Nevertheless, the plaintiff submits probative evidence demonstrating that the confinement and the stroke were foreseeable occurrences and/or hazards under the circumstances. (a) Medical Evidence Demonstrating Forseeablity: Annexed hereto as Exhibit “B” is the medical affirmation of Dr. Mark Eisenberg dated February 17, 200950. This medical expert is unquestionably qualified to proffer his medical opinion in this case. Dr. Eisenberg, a medical doctor licensed to practice in the state of New York, is a graduate of Columbia University Medical School where he was also an intern, resident and then fellow, specializing in internal medicine and in cardiovascular disease. He is board certified in cardiovascular disease by the American Board of Internal Medicine and presently on staff at New York-Presbyterian/Columbia Hospital. In Dr. Eisenberg’s current office practice he treats patients with cardiovascular disease, including stroke patients51.
See Exhibit “B” annexed hereto [emphasis added]. Annexed hereto as Exhibit “C” is a medical affirmation of Dr. Mark Eisenberg dated January 2010. A review of same shows an expert medical opinion at least raising an issue of fact if not demonstrating prima facie that the onset of plaintiff’s stroke was caused by her reaction to the stressful predicament of her entrapment in the subject space and her knowledge of the conditions therein52. Dr. Eisenberg medically opined; “It is my opinion that within a reasonable degree of medical certainty the “headache” and sudden “sharp pain” experienced by Mrs. Rosenbaum immediately before being freed from the carriage room were symptoms she experienced as a result of the rupture of the blood vessels that precipitated the stroke she suffered. The “panic” that Mrs. Rosenbaum testified to while in the carriage room because of her sensory awareness of “mice” and “bugs” on the floor of the room supports my medical opinion as stated in my affirmation dated February 17, 2009, regarding the relationship between acute emotional stress and the onset of intracerebral hemorrhage.” [Exhibit “C” annexed hereto] [emphasis added].
The medical affirmation at Exhibit “C” indeed confirms the proffered expert testimony noticed in plaintiff’s exchange pursuant to CPLR 3101 (d)…namely; “The witness may opine that plaintiff suffered a rupture of a small blood vessel in the brain in the carriage room and this resulted in a ‘slow bleed’ in plaintiff’s brain. This slow bleed caused a delay in the onset of the symptoms of the stroke.” [See Exhibit B annexed hereto] [Emphasis added]. Pursuant to Exhibits B and C attached hereto, Dr. Eisenberg medically opines that the circumstances of plaintiff’s confinement caused acute emotional stress. Pursuant to generally accepted medical treatises and literature, and based upon the plaintiff’s situation, the stroke suffered by plaintiff was indeed a foreseeable hazard of her confinement. Given the sensation plaintiff experienced while she was still confined, Dr. Eisenberg medically opines that the stroke happened while plaintiff was acutely stressed by her hour long confinement. Such proffered testimony/opinion[s] should be properly received, weighed, and determined by a jury at trial. Annexed hereto as Exhibit “D” is the medical affirmation53 of plaintiff’s treating physician Dr. Schiowitz. Plaintiff’s treating physician causally relates the plaintiff’s confinement to the stroke she suffered. Annexed hereto as Exhibit “E” are pertinent portions of medical records from Mount Sinai Hospital. The records are certified pursuant to a subpoena for same {proof attached hereto at Exhibit E}. A review of same shows that according to Dr. Anne Ambrose, the attending physician, plaintiff suffered a massive stroke because of getting upset being locked in the basement. Dr. Ambrose noted the extreme anxiety plaintiff suffered while being locked inside the carriage room and reported plaintiff’s extreme upset and anxiety did not stabilize until after plaintiff was under hospital observation. Such medical opinions certainly link plaintiff’s stroke to her confinement and the confinement is indeed a foreseeable consequence of a broken door knob on a self closing door. The medical evidence annexed hereto at Exhibits B, C, D, & E at least raise questions of fact on the issue of forseeability and preclude a grant of defendant’s motion.
(b) The Credibility of Plaintiff’s Medical Evidence is a Matter for Trial Plaintiff’s probative medical evidence demonstrates that pursuant to generally acceptable medical sources, the plaintiff’s stroke was a foreseeable consequence created by defendants’ negligence. Defendants maintain {with only the unqualified guesswork of defendant attorney} that a stroke is not an injury that flows from the harm of being confined for an hour in a dark infested basement. Given that plaintiff’s medical experts are surely more qualified than defendant attorney to proffer an opinion on the physical consequences flowing from the emotional stress of plaintiff’s confinement, a credibility determination, if proper on the instant motion should clearly tip in plaintiff’s favor. However, in as much as this is a motion for summary judgment and plaintiff has presented expert medical evidence as to element(s) of plaintiff’s claim, the assessment of such opinions and whether or not the medical evidence conclusively establishes forseeablity is for the exclusive province of the jury. Regarding the ‘disagreement’ between defendant and plaintiff on causation and/or forseeability, the court, on a motion for summary judgment, will not make determinations of credibility or resolve conflicts in the medical evidence. See Corbett v. County of Onondaga, 291 A.D.2d 886, 738 N.Y.S.2d 621 (4th Dept. 2002); Pagels v. P.V.S. Chems., Inc., 266 A.D.2d 819, 698 N.Y.S.2d 368 (4th Dept. 1999); Johnson v. Baker, 2002 NY Slip Op 50103[U], 2002 WL 494892, 2002 N.Y. Misc. LEXIS 189 (Sup. Ct. App .T. 1st Dept. Mar. 19, 2002). It is well established that " expert opinions may not be resolved on a motion for summary judgment" Pittman v. Rickard, 295 A.D.2d 1003, 1004 (N.Y. App. Div. 4th Dep't 2002). Here, although due to the complete absence of medical evidence in support of the motion, this is not a situation where the court has to refrain from resolving “conflicting” medical opinions, however, as this is a motion for summary judgment, the medical opinions proffered by plaintiff’s experts can only properly be determined at trial. (c) Defendants Are Responsible for Consequences of Their Negligence Defendant’s motion spends a considerable amount of time essentially trying to convince this Court that a stroke is outside the realm of injuries that defendants should be responsible for. The medical evidence attached hereto demonstrates the incorrectness of defendant’s contentions as well as a vast body of decisional law. "It is a well-established principle of tort law that the defendant must take the plaintiff as he finds him"… [Thus] a defendant will be held liable for all of the consequences of [e.g.] striking a plaintiff on the head, even though he was unaware when he did so that the plaintiff had an egg-shell cranium" Ace v. State of New York, 207 AD2d 813, 815, 616 N.Y.S.2d 640 [dissenting opinion of Friedmann, J.], affd 87 NY2d 993, 665 N.E.2d 656, 642 N.Y.S.2d 855 (2nd Dept 1994). Generally, whenever the plaintiff's previous condition of injury or disease {whether latent or not} is aggravated by a subsequent injury resulting from the defendant's negligence, the defendant may be held liable for all damages that are the consequences of the negligent act, including the aggravation of, or precipitation of a disease that previously may have been dormant. See eg; Sanchez v. New York State and Local Police and Fire Ret. Sys., 208 A.D.2d 1027, 617 N.Y.S.2d 238 (3d Dep't 1994) [settled law that when preexisting dormant disease is aggravated by accident, thereby causing a disability that did not previously exist, accident is responsible for ensuing disability]; Sikorski v. Melba, 17 Misc. 2d 382, 383, 183 N.Y.S.2d 731, 732 (Sup. Ct. Nassau County 1959) [as result of automobile accident, benign ovarian tumor was dislodged from its bed, causing constant pain in abdominal region, and necessitating removal of tumor; defendants chargeable for all harm and suffering which negligent acts brought on, including precipitation of operation to remove tumor].See also; Bolowske v. Eastman, 288 AD 2d 851 (4th Dept 2001) [motor vehicle accident; plaintiff presented expert testimony that her preexisting spondylolisthesis condition was asymptomatic until accident; charge pursuant to PJI 2:283, that defendants could be liable for activating that latent condition was critical to fair evaluation of evidence by jury; court's refusal to give charge was reversible error] [emphasis added]. The Restatement (Second) of Torts @ 461 (1965) expresses this general rule as follows: The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.
Similarly, New York Pattern Jury Instruction, NY PJI 2:282 (West 2005), states: If you find that before this (accident, occurrence) the plaintiff had a [specify the particular condition] and further find that because of the (accident, occurrence) this condition was aggravated so as to cause (increased) suffering and disability, then the plaintiff is entitled to recover for any (increased) disability or pain resulting from such aggravation.
Furthermore, when an injured person has been suffering from a previous condition which renders him or her more susceptible to injury than a person without that condition, an award of damages might be warranted, even when otherwise none would be attainable. See; Fergus v. Benedetto Trucking Trucking Co., Inc., 50 A.D.2d 754, 755, 377 N.Y.S.2d 14, 15 (1st Dep't 1975) [negligent party is responsible for direct effect of acts against another, even when injury caused is made more serious by prior infirmities of the injured party]. See also; Evans v. S. J. Groves & Sons, Co., 315 F.2d 335, 349 (2d Cir. 1963) [judge's instructions merely assimilated case to that of "special physical condition," which makes consequences of impact more serious for particular victim than they would be for others, a situation which warrants imposition of full liability in absence of proof that the condition would have developed in any event] {emphasis added}. The familiar line is that "a defendant must take a plaintiff as he finds him." See; Seitz v. Dep't of Fire, 55 A.D.2d 829, 830, 390 N.Y.S.2d 308, 308 (3d Dep't 1976) [defendant runs risk that person whom he injures may be in such condition that the injury would be far more serious than had such person been strong and without a pre-existing condition which the accident aggravates]; Bartolone v. Jeckovich, 103 A.D.2d 632, 635, 481 N.Y.S.2d 545, 547 (4th Dep't 1984) [defendant was liable for the plaintiff's psychotic illness resulting in total disability when injury from minor automobile accident aggravated his schizophrenic condition]; Fegley v. Steinbach, 33 A.D.2d 884, 885, 307 N.Y.S.2d 787 (4th Dep't 1969) [pedestrian struck by automobile; medical testimony that because of plaintiff's already existing partial spastic paralysis, injuries would cause greater injuries in future]. The New York Pattern Jury Instruction, NY PJI 2:283 (West 2005), expresses this rule as follows: The fact that the plaintiff may have a physical or mental condition that makes (him, her) more susceptible to injury than a normal healthy person does not relieve the defendant of liability for all injuries sustained as a result of (his, her its) negligence. The defendant is liable even though those injuries are greater than those that would have been sustained by a normal healthy person under the same circumstances.
Whether a defendant neither knew nor should have known of the victim's susceptibility to injury is not a defense to liability for such an injury. The defendant in a personal injury action cannot invoke the previous condition of the person injured for the purpose of reducing the damages for which he is liable. See; Owen v. Rochester-Penfield Bus Co., Inc., 304 N.Y. 457, 461, 108 N.E.2d 606, 608 (1952) (bus passenger, who suffered from heart condition that resulted in poor circulation, sustained frostbite in improperly heated bus; bus company held liable, even though plaintiff might not have sustained frostbite had she not been afflicted with heart condition); Lopato v. Kinney Rent-A-Car, Inc., 73 A.D.2d 565, 423 N.Y.S.2d 42 (1st Dep't 1979) (automobile collision; reversible error committed when jury was instructed that if it found that "plaintiff's condition...was a result of the degenerative condition...(it could) not award damages therefore[e];" charge served to confuse jury and was inconsistent with main charge, which properly informed jury that if plaintiff had bodily condition which made her more subject to injury than person in normal health, defendant was responsible for such injuries). See also; King v. State, 58 A.D.2d 934, 935, 396 N.Y.S.2d 919, 920 (3d Dep't 1977) (State liable for all consequences of injury caused, even though that injury would have been less disastrous if claimant had been in good health at time of injury) {emphasis added} ;Martin v. Volvo Cars of N. Am., 241 A.D.2d 941, 943, 661 N.Y.S.2d 338, 339 (4th Dep't 1997) (familiar tort doctrine that one who is negligent is chargeable for all of harm that negligent act causes, even if injuries are activated or exacerbated by preexisting vulnerability or condition) {emphasis added}. Here, the defendant has failed to demonstrate that they are not liable for plaintiff’s injuries, regardless of whether or not plaintiff was already vulnerable to extreme stress leading to a stroke while confined in a small dark place for a considerable amount of time; and regardless of whether or not defendant knew or not of such vulnerability.
(d) Issues of Forseeability Depend In Part Upon the Unique Circumstances of the Case The circumstances54 of the case at bar are essential for determining whether the occurrence of plaintiff suffering a stroke from the stress of being locked inside a small dark space in the basement with rodents and bugs present because the defendant permitted the knob of the self closing door to that space to remain in disrepair. Regarding the circumstances, a few are of particular note; besides the carriage room and laundry facilities, the garbage was compacted and stored in the basement55. Plaintiff’s stress and hysteria were foreseeable consequences of her entrapment as she perceived no end to her entrapment, absent a means to call for help. As the testimonial record also demonstrates that plaintiff was alone in the basement, mice and bugs were known to exist, the sole building attendant was on break, the basement lacked any security system or emergency system, the plaintiff was without a cell phone while trapped, and the lighting was insufficient, the record should properly prevent a finding that plaintiff’s hysteria and stress while involuntary confined for more than an hour proves unforeseeable. Plaintiffs submit that both the entrapment/confinement and the stroke suffered from the onset of acute emotional stress during the confinement are foreseeable occurrences under the circumstances. The liability of a landowner to one injured on his property is governed "by the standard applicable to negligence cases generally, i.e., the 'the standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability'“ Basso v Miller, 40 NY2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [emphasis added]; see also generally; Scurti v City of New York, 40 NY2d 433, 437, 387 N.Y.S.2d 55, 354 N.E.2d 794. The initial burden regarding forseeability rests upon defendant. Here, defendant’s burden regarding this aspect of negligence was to “make a prima facie showing that the plaintiff's actions were unforeseeable or of such a character as to sever the causal connection between the defendant's alleged negligence and the plaintiff's injury” Soomaroo v. Mainco El. & Elec. Corp., 2007 NY Slip Op 4816, 1 (2d Dep't, 2007). Defendant herein fails to proffer any evidence, in admissible form or otherwise, establishing as a matter of law, that plaintiffs’ actions were a superseding cause absolving defendant from liability. Thus, defendant’s motion for summary judgment dismissing the complaint must be denied. See; Soomaroo v. Mainco El. & Elec. Corp., 2007 NY Slip Op 4816, 1 (2d Dep't, 2007). Notice of the broken door knob constituted notice of any attendant hazard that was reasonably foreseeable, including, but not limited to, involuntary confinement of a tenant using the carriage room. It is not necessary that defendant could have anticipated the precise manner of the accident or the exact extent of the injuries resulting therefrom. “That defendant could not anticipate the precise manner of the accident or the exact extent of injuries, however, does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable." Sweeney-Kamouh v. New York, 180 A.D.2d 487, 488 (1st Dep't, 1992) Defendant has wholly failed to make a showing that the general risk and character of the injuries were not foreseeable in this case, but rather proffers only baseless speculation on this matter. It was not necessary that defendant have actual notice that the carriage room presented as a trap. It was sufficient that there was actual notice of a defective door knob on the self closing door of the confined space of the carriage room, and a general awareness that the door knob of the self closing door could fall off and created a trap like hazard. See; Sweeney-Kamouh v. New York, 180 A.D.2d 487, 488 (1st Dep't, 1992). [A]lthough virtually every untoward consequence can theoretically be foreseen … the law draws a line between remote possibilities and those that are reasonably foreseeable" See generally; Aviles v. Crystal Mgmt., 253 A.D.2d 607, 608 (1st Dep't, 1998). Here, defendant has failed to proffer any probative evidence to support its bare, unsupported, and erroneous contentions that plaintiff’s injuries are the former and not the latter. Conversely, the plaintiff proffers probative medical evidence that proves un-contradicted in the record and demonstrates that the “consequence” of plaintiff suffering a stroke was reasonably foreseeable under the circumstances herein.
(III) Discussion of Decisional Law Concerning Forseeability Issues Together with the evidence attached hereto discussed above, relevant decisional law discussing issues of forseeability, the plaintiff presents sufficient grounds for denial of defendant’s motion pursuant to CPLR 3212. In Jacobs v. Leader, 255 A.D. 954, 955 (1938), the court stated: “plaintiff and a cousin were alone in different parts of the apartment. A draught caused the door to close. The plaintiff's cousin attempted to pull the door open, but, unable to do so, called to the plaintiff to assist from the other side. The plaintiff placed his right hand on the knob, his left hand above the knob on the jamb, and pushed against the door. Suddenly his right hand slipped from the knob into one of the glass panels, resulting in injuries. It cannot be disputed that the defendant was negligent in failing to repair the door. The accident was the result of that negligence and was within the scope of reasonable apprehension. To entitle the plaintiff to recover it is not necessary that the defendant could not have foreseen the particular manner in which the accident occurred provided some danger resulted from his negligence. Whether the plaintiff was guilty of contributory negligence in allowing his hand to slip from the handle of the door was a question which should have been submitted to the jury as an issue of fact. At the time of the accident the plaintiff was eleven years old and could only be expected to exercise intelligence and care commensurate with his age. [Internal citations omitted] [Emphasis added]. Defendant’s contentions regarding the purported lack of forseeability have been rejected where, as here, defendant’s negligence causes plaintiff to become trapped resulting in injuries. In Wiggins v. City of New York, 1 A.D.3d 116 (1st Dep't, 2003), plaintiff became stuck in a malodorous, dirty and poorly ventilated elevator in defendant's building with her two daughters, aged 7 and 9; that the children became upset and complained that they could not breathe; and that after pressing the alarm button and getting no response, plaintiff banged on the elevator walls and screamed for 30 to 40 minutes before getting the attention of a nonresident who happened to be in the lobby. When the nonresident was unable to find a building attendant to assist plaintiff, he, together with plaintiff, pushed the outer elevator door back, and plaintiff passed her daughters to him through the resulting three-foot opening, which was about four feet above the lobby floor, without incident. However, when plaintiff attempted to exit, she was injured. The Court held; “Under these circumstances, we cannot accept defendant's contention that plaintiff's actions were so extraordinary as to interrupt the causal chain stemming from its negligence and constitute an intervening and superseding cause of her injury. Rather, the evidence warrants the conclusion that plaintiff's conduct in attempting to extricate herself from the fetid elevator in which she had been trapped without assistance for some 40 minutes was a foreseeable response to the hazardous situation that had developed by reason of defendant's negligence. Wiggins v. City of New York, 1 A.D.3d 116 (1st Dep't, 2003) 56 [internal citations omitted]. Here, the defendant’s arguments in the motion regarding plaintiff’s conduct while trapped are concerntrated to defendant’s contentions regarding the res ipsa claims. However, just as defendant has failed to proffer any proof regarding plaintiff’s conduct that supports dismissal of the res ipsa claims under the voluntary prong of that doctrine, the defendant has likewise failed to demonstrate that plaintiff’s conduct while trapped in the room did anything to interrupt the causal chain stemming from defendants negligence regarding the broken knob. In Manley v. New York Tel. Co., 303 N.Y. 18, 23 (N.Y., 1951) plaintiff’s claims against defendant arose out of a paralyzing stroke plaintiff suffered after allegedly suffering electric shock from a telephone wire. In support of plaintiff’s contention that his stroke was causally related to defendant’s negligence regarding the wire, plaintiff only proffered testimony of a doctor who never treated him, but merely examined him a few days before the trial. That witness testified: "The findings were really of two phases, I felt. One was based, I believe, on direct trauma. He had complained of pain in the right shoulder and pain in the right knee, and those, I felt, were based on direct trauma." X-rays were negative, but on palpation he found pain and tenderness over the right shoulder, with restriction. "The other findings were, I believe, based on a neurologic basis and I believe those are based on some injury or some accident that may have occurred in the brain. I believe that this patient had a stroke he showed residual signs of a right hemiplegia or a right side stroke." Manley v. New York Tel. Co., 303 N.Y. 18, 23 (N.Y., 1951). The Court noted “No hypothetical questions were asked of the doctor to show that an electric shock at the time in question was in his opinion the competent producing cause of the paralytic stroke or the alleged shoulder injury; nor was there any evidence to relate the stroke to any electric shock sustained over the telephone. Indeed, his whole testimony was vague, he gave no opinion based on reasonable certainty, and at best predicated his "findings" upon such statements as "I felt" and "I believe"……………. Although it is clear that plaintiff had an experience while using the telephone, we have no way of inferring short of sheer speculation what that experience was. He never once said he felt an electric shock. All the surrounding circumstances point the other way. What he did say was that he answered the telephone, which was then apparently functioning properly, for he had time to exchange greetings with Mr. Seeley and to recognize his voice; it was after this exchange of greetings, he stated, that he "got knocked out" and that is all he knew. He produced no other proof. As a layman he is not in a position to express an opinion as to what caused his paralysis, neither is a jury, nor are we” Manley v. New York Tel. Co., 303 N.Y. 18, 23 (N.Y. 1951). Conversely, here, the medical evidence attached to this opposition does not suffer from the same insufficiencies as the medical opinion proffered in the Manley case. {See Exhibits B- D attached hereto} The medical evidence attached hereto shows the stroke was the direct cause of the stress plaintiff suffered while being involuntary confined in a dark carriage room surrounded by bugs and vermin. The opinions linking plaintiff’s stroke to the dangerous and stressful situation created by defendant’s negligence are based upon generally accepted medical references. In any event, to the extent this Court is not convinced that plaintiff’s submissions demonstrate the stroke was foreseeable, at least this Court can agree that the trier of fact should hear the opinions of the medical providers at trial. To the extent the contentions in defendant’s motion attempt to cast the plaintiff’s failure to use her key to free herself and/or the stroke as a superseding/intervening cause of the harms plaintiff suffered, defendant is mistaken. In Dumbadze v. Schwatt, 291 AD2d 529 [2d Dept., 2002], plaintiff was hurt when she fell off a ladder while attempting to repair a light fixture in the vestibule outside her apartment, which had malfunctioned at times over a period of 6 years, and of which she gave notice to defendant. Days before the accident, she had informed the building superintendent that the light was not working, and he told her how to fix it. Defendant moved for summary judgment, asserting that plaintiff’s act of attempting to fix it was a superseding cause of her injuries; the trial court granted the motion, but the Appellate Division reversed, stating that plaintiff’s conduct might have been predicted under the circumstances. See also, Jackson v. NYCHA, 214 AD2d 605 [2d Dept. 1995]; McCann v. NYC, 205 AD2d 668 [2d Dept., 1994]. In Griffith v. Southbridge Towers, 248 AD2d 162 [1st Dept., 1998], the plaintiff was injured as he attempted to extract a hand truck from a depression on a street which resulted from excavation work performed by various defendants. The Court observed: “Plaintiff’s attempt at removing his hand truck from the aforementioned depression was not, as a matter of law, an intervening and superseding cause of his harm sufficient to absolve defendants from liability for any earlier neglect by them at the site of the depression. The fact finder could have concluded, based upon the evidence before it, that the causal chain stemming from defendants’ alleged negligence remained unbroken…” In Shutak v. Handler, 190 AD2d 345 [1st Dept., 1993], water bubbles frequently formed on the ceilings of defendant’s apartment building, where plaintiff lived. When the bubbles burst, plaster would fall. Plaintiff had made approximately a dozen reports to the management about the condition of her ceiling, but nothing was done. When plaintiff saw another bubble forming on her dining room ceiling, she notified defendant’s representatives; during the following week, no one came to repair the ceiling; on Saturday at 5:30 AM, plaintiff saw that the bubble had grown, and, for fear that it would burst, plaintiff got up on a chair to poke it with a broom handle. The chair slipped from under her and she fell to the floor and injured her ankle. The Court found that the accident “flowed from defendant’s negligence”, and that a “jury could find” that plaintiff’s action “was a normal and foreseeable response to the imminent threat of harm posed by the ceiling’s condition.” Accordingly, where the intervening act is a natural and foreseeable consequences of circumstances created by the defendant, liability will attach (Gordon v. Eastern Rwy. Supply, 82 NY2d 555 [1993]; Nallan v. Helmsley-Spear, 50 NY2d 507 [1980]). In the case at bar, defendants’ negligence “set in motion” the “series of events” which led to the plaintiff’s injuries. Therefore, plaintiff’s action cannot be dismissed. See, Bahan v. Green Bus Lines, 96 AD2d 876 [2d Dept., 1983], affd. 61 NY2d 922 [1984] (Bus driver could be liable injuries to persons on street resulting when he ran over a bottle which proved to be filled with acid, as injury from such action, in general, was foreseeable); Baker v. Luner Trucking, 54 AD2d 654 [1st Dept., 1976] (Defendant could be liable for throwing boxes on sidewalk, frightening a dog which then dragged plaintiff on its leash, causing injuries). On a further note regarding defendant’s baseless contentions regarding plaintiff’s conduct toward the door-knob, plaintiff submits that plaintiff’s handling of the doorknob, even if assuming arguendo it was in a forceful manner does not serve to exculpate defendant. Attempts to extricate oneself from safety devices or other instrumentalities which are not working correctly, in an emergency situation, are generally not considered superseding causes of a defendant’s negligence. See, Jamison v. GSL Enterprises, 274 AD2d 356,361 [1st Dept. 2000] (Decedent unhooked safety belt in attempting to escape from tilting scaffold; this could be foreseeable response to emergency created by defendant’s alleged negligence). It is only when plaintiff’s actions are reckless and completely unwarranted that a finding of superseding and/or intervening cause can be proven. See, Jackson v. Greene, 201 NY 76 [1911]; Mack v. Altmans Stage Lighting, 98 AD2d 468 [2d Dept., 1984]. Here, as plaintiff’s testimony that the doorknob fell off in her hand proves un-contradicted, and nothing in the record supports that plaintiff’s actions/conduct caused the doorknob to fall off, the defendants are negligent. The above cited case law and discussion of same should provide further grounds to deny defendant’s motion in its entirety. (IV) Defendants Failure to Meet its Prima Facie Statutory Burden Must Result in Denial of the Motion
Defendant’s motion should be denied in its entirety in the first instance because defendant has failed to meet its prima facie evidentiary burden under the circumstances of this case. On motions for summary judgment, moving party has burden to set forth evidentiary facts to establish cause sufficiently to warrant judgment as matter of law; and anything less requires denial of motion, even where opposing papers are insufficient. See generally; Lamberta v Long Island Rail Road, 51 AD 2d 730, (2d Dept, 1976). “To establish entitlement to summary judgment, defendant was required to demonstrate as a matter of law that he maintained the subject property in a reasonably safe condition and "neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof" See generally; Mazerbo v. Murphy, 2008 NY Slip Op 5605, 2 (3d Dep't, 2008). Here, defendant has failed to show that the knob and/or door were in a reasonably safe condition and not in a dangerous and defective condition at the time of plaintiff’s entrapment. Likewise, defendant has failed to show that it lacked actual and/or constructive notice of the defective knob. Indeed, as discussed above, the testimony submitted by defendant actually prevents a finding that defendant lacked notice of the condition as a work order was issued for the knob days before the accident. Given the evidence regarding the issuance of the work order, since defendant has failed to show the work ordered was performed properly and without negligence, the defendant has also failed to demonstrate prima facie that defendant, its agents, servants, or employees did not create and/or exacerbate the defective condition as it existed on the date of plaintiff’s accident. Thus, whether the knob was defective by defendant’s negligent omission to repair same where defendant had indisputable notice that it was broken, or by defendant’s commission of negligently repairing the knob such that it was still and/or even more defective on the date of the subject incident, the defendant has failed to show it was not negligent as a matter of law, failed to show entitlement to dismissal of the complaint and the motion must be denied. Although defendant’s failure to make its aforementioned required demonstrations is enough for this Court to deny summary judgment without reaching the evidence in opposition, here, the submissions attached to the instant opposition provide more than sufficient grounds for this Court to find issues of fact as to notice and deny the motion. Because the defendant has failed to meet its statutory burden and pursuant to the plain language of CPLR 3212 and decisional law applying the standards in that section, the defendants’ motion must fail. CPLR §3212 (b) entitled “Supporting proof; grounds; relief to either party” reads in pertinent part; A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Summary judgment is a drastic remedy and the requirements of CPLR 3212 must be strictly complied with in order to entitle the moving party to such a judgment. When submitting a motion for summary judgment, it is the moving party who has the burden to convince the court that the "defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." ( CPLR 3212, subd [b]; see, also, O'Connor-Sullivan, Inc. v Otto, 283 App Div 269, 272.) The moving papers and the proof submitted must, in the first instance, be sufficient to warrant granting judgment in favor of the moving party even where the opposing papers are insufficient to defeat the motion ( Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067; Walski v Forma, 54 AD2d 776; Stelick v Gangl, 47 AD2d 789; Greenberg v Manlon Realty, 43 AD2d 968). In the instant case, the moving papers proffered by defendants and the exhibits attached to same prove wholly insufficient to warrant granting judgment in the defendants favor, regardless of the sufficiency of the plaintiff’s opposition papers. As the defendants motion fails to eliminate questions of fact regarding notice and presents evidence replete with such questions, the motion by defendant must be denied in its entirety. In every case, on an application for summary judgment, it is incumbent on the court to examine the affidavits57 and proofs submitted to ascertain if there is any real issue for trial. See generally; Gray Mfg. Co. v Pathe Industries, Inc. (1st Dept, 1969 ) 33 App Div 2d 739, 305 NYS2d 794, affd (1970) 26 NY2d 1045, 312 NYS2d 200, 260 NE2d 821. Summary judgment is a drastic remedy that should be granted only if no triable issue of fact exists and the movant is entitled to judgment as a matter of law. See generally; Rotuba Extruders v Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 [1978]; Herrin v Airborne Frgt. Corp., 301 AD2d 500, 753 NYS2d 140 [2d Dept, 2003]). On a motion for summary judgment, the function of the court is issue finding, not issue determination. See generally; Wiener v Ga-Ro Die Cutting, 104 AD2d 331, 479 NYS2d 35 [1984], affd 65 NY2d 732, 481 NE2d 569, 492 NYS2d 29 [1985]. In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion. See generally; Glennon v Mayo, 148 AD2d 580, 540 NYS2d 190 [2d Dept, 1989]. “It is settled law that a landowner is under a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Basso v Miller, 40 NY2d 233, 241, 352 NE2d 868, 386 NYS2d 564 [1976])” Irizarry v. 15 Mosholu Four, LLC, 2005 NY Slip Op 10213, 1 (1st Dep't, 2005). Given the standards for summary judgment cited in the decisional law cited above and given the salient record herein, the defendant has failed to show that it did not breach its duty owed to plaintiff just as defendant has failed to show it lacked notice of the defective knob. Therefore, the defendant’s motion must be correctly denied in its entirety. Additionally, defendant’ s failure to eliminate questions of credibility provides further grounds for denial of the motion. (V) Defendant’s Misplaced Reliance on Case Law Provides Further Grounds for Denial of the Motion A reading of the record, together with the decisional law cited in defendants papers, in a light most favorable to plaintiff provides further reason for this Court to deny defendant’s motion. The case law cited in defendant’s motion fails to support the movant’s contentions, proves distinguishable from the facts herein and/or actually provide further opposition to the motion. For example, in Mei Cai Chen v. Everprime 84 Corp., 2006 NY Slip Op 8336, 1-2 (1st Dep't, 2006), although the Court dismissed plaintiff’s complaint, said dismissal was not predicated upon plaintiff’s inability to prove the existence of a dangerous condition in the doorknob and notice to defendants. Rather, dismissal was predicated solely on the fact that plaintiff fell down the stairs after using the defective door knob and falling backwards down same, which the court found to be a hazardous outside the risks associated with a broken door knob. Regarding the issues of notice, the majority opinion noted; “Assuming without deciding that plaintiff has raised an issue as to whether defendant was negligent in failing to remedy the defective conditions of the lock and doorknob …….The dissent primarily focuses on an issue (whether defendant had notice of the problems with the doorknob and lock) that, as expressly stated above, we have assumed to be resolved in plaintiff's favor”. Mei Cai Chen v. Everprime 84 Corp., 2006 NY Slip Op 8336, 1-2 (1st Dep't, 2006). [emphasis added]. Contrast: Girard v. Fine, 274 A.D. 583, 584, 85 N.Y.S.2d 418, 419 (3d Dep't, 1948) [as plaintiff opened door toward her, she lost her balance and fell down stairway; jury should have been charged that if, in reversing swing of door, dangerous situation was created, defendants could properly be held liable for resulting injuries]. In the Chen case, the Court did not have to actually state whether it found issues of fact in the record regarding notice and existence of the defective condition because the plaintiff could not show that the harm sustained in falling down the stairs was “within the class of reasonably foreseeable hazards that the duty exists [to repair the door knob] to prevent.” {supra}. Conversely, here, the plaintiff did not fall backwards down the stairs upon using the defective doorknob in defendant’s building but rather, suffered injuries associated with being trapped as a result of the defective knob. As plaintiff’s entrapment herein is a reasonably foreseeable hazard associated with a broken door knob, there is no foreseeablity predicament in this case, unlike the Chen case. As such, the relevant inquiry before this Court is an inquiry the Chen Court did not have to decide; whether questions in the record regarding defendant’s notice of the defective condition preclude a grant of summary judgment? Here, this inquiry should be answered in the affirmative and the motion should be denied. Notably, even if this Court is not persuaded by the record that the element of foreseeability in plaintiff’s claims should be resolved in favor of plaintiff, as defendant’s own motion concedes, questions of foreseeability, if any here, are generally for the jury to determine58. Arguably, defendant has not shown that the instant situation is one where the Court should determine foreseeability as a matter of law as defendant has failed to establish prima facie, that there is only a single inference that can be drawn from the undisputed facts. Defendant’s failure to make such a showing should inure to defendant’s detriment and result in an order denying the motion. The defendant places mistaken reliance upon the DiPonzio case cited in defendant’s papers. Unlike the instant matter, the relevant inquiry in DiPonzio, like Chen, turned exclusively upon forseeability. In Di Ponzio v. Riordan, 89 N.Y.2d 578, 585-586 (N.Y. 1997), the Court stated in part; “The occurrence that led to plaintiff's injury was clearly outside of this limited class of hazards. Plaintiff was injured because the parking gear of another customer's car inexplicably failed and the unattended vehicle, which had rested stationary on a level surface for more than five minutes, suddenly began to move backwards, pinning plaintiff between its rear bumper and the bumper of his own car. Because this type of accident was not among the hazards that are naturally associated with leaving a car engine running during the operation of a gas pump, the alleged misconduct of URC's employees does not give rise to liability in tort. Indeed, plaintiff's position in this case is analogous to that of the child whose foot was injured by the plummeting pistol in the Restatement hypothetical. Moreover, while plaintiff's accident may have been an indirect consequence of the station attendant's failure to direct Riordan to turn off his engine, the accident was, at most, a remote possibility at the time the conduct in question occurred and thus was not a foreseeable consequence of the attendant's inaction, even though the risk may now readily be perceived through hindsight”.
Clearly, the facts in the instant case are dramatically different from those presented in the Di Ponzio case and for that reason, defendant’s reliance upon same should inure to defendant’s detriment. Further, defendant arguably cites various decisions {however distinguishable from the instant case} devoted to forseeability in an attempt to avoid dealing with the matter of notice herein. Also factually dissimilar from the matter herein is the case Pinero v. Rite Aid of N.Y., Inc., 99 N.Y.2d 541 (N.Y. 2002) cited by defendants. There, plaintiff was injured “at defendant store when an assistant manager, who attempted to pass her three boxes of food across the top of a wagon located in an aisle, dropped the boxes, and plaintiff fell when she tried to grab the boxes”. The Appellate Division determined that plaintiff's accident was not within the reasonably foreseeable risks of the defendant's alleged negligence. Thus, not only are the Pinero and Di Ponzio cases factually distinguishable from the situation herein, but both decisions focused almost exclusively upon the matter of foreseeability. Here, the crucial inquiry is notice and defendant has failed to cite controlling decisional law or admissible evidence eliminating material factual issues regarding notice. Stated somewhat differently, although the court in Chen found a fall backwards down the stairs was not an event normally associated with use of a broken doorknob on a non self closing door that closes inward away from the stairs, the same cannot be said as a matter of law about a person becoming trapped inside a space after unwittingly using a broken doorknob to attempt to exit said space. Just as the Chen court did not focus on the physical injuries sustained by the plaintiff but rather the accidental event [fall down stairs] triggered by the broken door knob, here, defendant’s contentions that a stroke is not a foreseeable consequence of a defective knob are of no moment. Moreover, defendant has wholly failed to make a prima facie showing that a stroke suffered after being involuntarily trapped where plaintiff became trapped because of a broken door knob that prohibited her escape is not a foreseeable occurrence/harm. The harm of suffering a stroke from being trapped is arguably within the class of a reasonably foreseeable harms that could result from defendant’s failure to fix a broken knob on a self closing door, to a space that could exist as a trap without a functional means of ingress and egress. Plaintiff also notes the well settled principle that “the precise manner in which the harm occurred need not be foreseeable”. See generally; Sanchez v. State, 99 N.Y.2d 247, 252 (N.Y. 2002). Pursuant to Court of Appeals decisional law, forseeability is generally a question for a jury to determine. See generally; Eiseman v. State, 70 N.Y.2d 175, 187 (N.Y., 1987)59 [“Unlike foreseeability and causation, both generally factual issues to be resolved on a case-by-case basis by the fact finder, the duty owed by one member of society to another is a legal issue for the courts”]60. Defendant’s reliance upon the case entitled Barber v. Barber61 is also misplaced as defendant mistakenly attempts to analogize a duty to prevent with a duty to repair. Here, the defendant’s had an admitted duty to repair. In the Barber case, the issue turned on whether defendant had a duty to prevent an accident. The duties owed by the respective defendants in the Barber case and herein prove drastically different and the Barber case has no controlling or persuasive effect herein. For these reasons, the defendant has failed to make its required showing as to issues of notice, and forseeability. Therefore, the motion should be denied in its entirety. (VI) Plaintiff’s Claims Based upon Negligence Principles and the Doctrine of Res Ipsa Loquitur Must Remain Intact
Although the body of this opposition deals primarily with defendant’s contentions regarding the elements of plaintiff’s negligence claim, the plaintiff also submits that dismissal of the Res Ipsa claim62 would be improper based upon the record and decisional law. “Res ipsa loquitur allows, but does not require a jury to infer from circumstantial evidence that a defendant was negligent. Accordingly, res ipsa loquitur evidence does not ordinarily or automatically entitle [a] plaintiff to summary judgment or a directed verdict, even if the plaintiff's circumstantial evidence is un-refuted. Rather, only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable and only when "no facts are left for determination”. Hisen v. 754 Fifth Ave. Assoc., L.P., 2009 NY Slip Op 50773U, 5 (N.Y. Sup. Ct. 2009). Defendant’s contentions arguing for dismissal of plaintiff’s res ipsa claims are based entirely upon baseless speculation. There is no authority cited in the motion supportive of dismissing any claim where the request for said dismissal is predicated exclusively upon a defendant attorney’s unfounded and unsupportable speculation regarding plaintiff’s conduct. It is axiomatic that "the bare affirmation of [a party's] attorney who demonstrated no personal knowledge of the [matter] … is without evidentiary value and thus unavailing." Zuckerman v. New York, 49 NY2d 557, 563, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). Further, if defendant suspected plaintiff of improperly handling the doorknob, such matters should have been probed during plaintiff’s deposition. To the extent this Court is inclined to entertain defendant’s speculation regarding the plaintiff’s handling of the doorknob, plaintiff submits that assuming arguendo the plaintiff used more than daily effort in turning the doorknob, the trier of fact should determine whether the event of becoming trapped in the first place was actually due, in any part to the plaintiff’s handling of the doorknob, after she became trapped. It is not axiomatic that a contention regarding plaintiff’s “voluntary conduct” results in dismissal of a res ipsa claim, rather, contentions/and/or proof regarding plaintiff’s voluntary conduct generally only militate toward denial of summary judgment in favor of plaintiff. See; Manning v. Curtice-Burns, Inc., 12 A.D.3d 1091, 784 N.Y.S.2d 781, 781 (4th Dep't 2004) [plaintiff was not entitled to summary judgment on the basis of res ipsa loquitur because he failed to establish that no negligence on his part contributed to the happening of the event that caused his injury] Cf. Beadleston v. American Tissue Corp., 41 A.D.3d 1074, 839 N.Y.S.2d 283, 286 (3d Dep't 2007) [plaintiff walking in dangerous area was not contribution to accident that precluded application of res ipsa loquitur when bale fell on him, and only furnished occasion for accident]. Momentarily putting aside the considerable evidence demonstrating notice herein related to plaintiff’s negligence claims, defendant may be liable under the doctrine of res ipsa loquitur even where the defendant establishes that it had no actual or constructive notice of the defective condition which caused a plaintiff's injury (see e.g. Fyall v Centennial El. Indus., Inc., 43 AD3d 1103, 1104, 843 N.Y.S.2d 137 [2d Dept 2007]; Mejia v New York City Tr. Auth., 291 AD2d 225, 226, 737 N.Y.S.2d 350 [1st Dept 2002]). Just as bare contentions prove unsupportive of defendant’s request for dismissal of the res ipsa claims, such contentions prevent dismissal of plaintiff’s meritorious claims of negligence against defendant. In Adekanbi v. Purdue Leasing Ltd. Liab. Co., 2006 NY Slip Op 26238, 3 (N.Y. Sup. Ct. 2006) (Kings County), Judge Kramer wrote in part; “this court holds that plaintiff's decedent was entitled to the minimal protections of a working chain lock on a door that provided access to a terrace six stories above ground level…..The defendants' argument that the proof is too speculative because the door could have been left open or the child could have climbed on a chair is rejected. Although there is no witness to this tragic event and the plaintiff's claimed evidence is wholly circumstantial, it is nonetheless sufficient because plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may reasonably be inferred. The law does not require that plaintiff's proof 'positively exclude every other possible cause' of the accident but defendant's negligence. Rather [his] proof . . . render[s] those other causes sufficiently 'remote' or 'technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence…..The defendants' motion for summary judgment is denied” [internal citations and quotations omitted] [emphasis added].
Just as defendant’s speculative arguments regarding plaintiff’s conduct was rejected by the Court in Adekanbi v. Purdue Leasing Ltd. Liab. Co., {supra}, this Court should reject defendants speculation regarding plaintiff’s negligence and res ipsa claims. In Lovitt v. Ypsilon Constr. Corp., 2008 NY Slip Op 50600U, 7-8 (N.Y. Sup. Ct. 2008) (Kings County), Judge Jacobsen in denying defendant’s motion for summary judgment stated in part; “[defendant movant] fails to establish, however, that it did not launch a force or instrument of harm, i.e., that it did not create or exacerbate a dangerous condition. In this regard, plaintiffs allege that Phoenix created a dangerous condition when it installed the new tiles in such a way that caused the floor to be uneven, which in turn caused the stove to wobble and the pot to fall on [plaintiff-Tonisha]. The court finds these allegations raise a question of fact sufficient to warrant the denial of [defendant’s] motion (see generally Grant v Caprice Mgt., 43 AD3d 708, 841 N.Y.S.2d 555 [2007] [the allegation that the management company negligently installed a window with defective parts, causing it to fall out of its track, created an issue of fact with regard to whether the company launched a force or instrument of harm]). Similarly, although movants argue that the proximate cause of Tonisha's accident was Diane's conduct in leaving a pot filled with hot water and grease on the stove and Tonisha's conduct in bumping the stove with her shoulder, it is well established that there can be more than one proximate cause of an accident” Lovitt v. Ypsilon Constr. Corp., 2008 NY Slip Op 50600U, 7-8 (N.Y. Sup. Ct. 2008)63.
Similarly, in the instant case, the defendant has failed to show [inter alia]; that if the knob was fixed pursuant to the work order(s); that defendant {by its agent/employee Santiago} did not create or exacerbate a dangerous condition in installing a new knob or fixing the already defective knob. Defendant’s failure to eliminate such issues let alone even meaningfully discuss same should be sufficient if not further reason to warrant denial of the motion. Regarding defendant’s contentions as to use of the carriage room/door by tenants, such bare contentions do not support dismissal of the plaintiff’s Res Ipsa claims as the ‘exclusive control’ element of the doctrine is not a rigid concept pursuant to Appellate Division decisional law. For these reasons, and the reasons stated herein, the plaintiff’s entire complaint, including claims of negligence and those relying upon the doctrine of res ipsa must remain intact. (VII) Defendant Is Not Permitted to Cure the Deficiency in the Motion Papers with Reply Papers
Finally, plaintiff notes that defendant has failed to attach any medical evidence whatsoever in support of defendant attorneys bare and unsupported and indeed contradicted contentions that a stroke was not a foreseeable consequence of the defendant’s negligence. To the extent defendant makes a belated attempt to attach medical evidence in support of such bare contentions and/or attempting to refute the medical opinions proffered herein, the plaintiff strongly objects to same and urges this Court to reject any evidence not previously attached to the motion out of hand. Indeed, this Court must properly reject any arguments, facts and evidence, proffered by defendant for the first time in reply. It is error to "rely upon facts raised in reply papers" for the first time. Rubens v. Fund, 23 AD2d 3d 636 [2d. Dept., 2005]; Sanford v. 27-29 West 181 St., 300 AD2d 250 [1st Dept., 2002]; Constantine v. Premier Cab Corp., 295 AD2d 303 [2d Dept., 2002]. CONCLUSION For the reasons stated herein and based upon the salient record, the defendant’s motion must be denied in its entirety and a trial date should be set without further delay. WHEREFORE, it is respectfully requested that the defendant’s motion be denied in all respects together with such other and further relief as to this Honorable Court may seem just and proper.
Brooke Lombardi, Esq. SUBIN ASSOCIATES, LLP Attorney for Plaintiff 150 Broadway 23rd Floor New York, N.Y. 10007 (212) 285-3800
Sworn to before me this ______day of,___________________, 2010
__________________________ Notary Public
AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK ) COUNTY OF NEW YORK) SS.: _____________________, being duly sworn, deposes and says, under the penalty of perjury and upon information and belief: Deponent is not a party to the action, is over 18 years of age and is employed at 271 Broadway , New York, N.Y. 10007. On February 18, 2010 deponent served the within AFFIDAVIT IN OPPOSITION upon: Attorney(s) for defendant; This/these being the address designated by said attorneys for that purpose by depositing a true copy of same enclosed in a post-paid properly addressed wrapper, in an official depository mailbox maintained at 271 Broadway Floor, New York, N.Y. 10007 under the exclusive care and custody of the United States Postal Service within the State of New York. ________________________
Sworn to before me this _____day of ____________________, 2010
______________________ Notary Public AFFIDAVIT OF PERSONAL SERVICE
STATE OF NEW YORK ) COUNTY OF NEW YORK) SS.: ____________________________ , being duly sworn, deposes and says, under the penalty of perjury and upon information and belief: Deponent is not a party to the action, is over the age of 18, and is employed at 150 Broadway 23rd Floor, New York, New York 10007. That on _______________________________, 2010, deponent served the within AFFIDAVIT IN OPPOSITION upon: Attorney for defendant;
by delivering a true copy thereof to them personally and leaving same with _________________________at the above address.,
______________________________
Sworn to before me this _______day of ______________________,200
_______________________ Notary Public
AFFIDAVIT IN OPPOSITION TO DEFENDANT(S) MOTION
SUBIN ASSOCIATES LLP Attorneys for Plaintiff Office and Post Office Address, Telephone 150 Broadway 23rd Floor, 9th Floor NEW YORK, NY 10007 TELEPHONE 212-285-3800
To:
Attorney for
Service of a copy of the within is hereby admitted Dated:, ........................................................ Attorney for
TO: SUBIN ASSOCIATES LLP Attorneys for plaintiff 150 Broadway 23rd Floor, 9th Floor Attorney for Defendant New York, NY 10007 (212) 285-3800
1 Referred to collectively herein as “defendants” and/or defendant’s, and/or defendant 2 Bedford Gardens is the owner of the preemies, Kraus is the Management Company for the premises. The witnesses produced for deposition are purportedly Kraus employees. See Exhibit H; See also; Exhibit I page 180 3 The evidence cited in Footnote 2 above as presenting evidence of the defendant’s negligence, including notice and forseeability or at least presenting triable questions as to same are found for the most part in this record, attached to defendants’ own motion. Since its defendants’ initial burden to produce evidence in admissible form eliminating all questions of fact, arguably, this Court may correctly deny defendant’s motion without reaching the sufficiency of plaintiff’s submissions in opposition. 4 Defendant attorney’s own affirmation discusses matters in this case either expressly or impliedly as “issues”. See paragraph(s) #34 “Issues as to Notice”; #45 “begs the question”. 5 Name of witness previously exchanged, proof of same included at Exhibit A hereto. 6 Any testimony of Castro does not directly deny this conversation but only contains a general, blanket denial of any complaints about the door. However, ultimately, the testimony of Castro proves internally inconsistent and internally contradictory, and requires a credibility determination and thus a trial. 7 Exhibit “F’ attached to defendant’s motion 8 referred to intermittently herein as entrapment. 9 No testimony in the record shows plaintiff banged on the doorknob or used force when using knob before or after it fell out of door. 10 See page 96 line 3 11 Id. 12 page 88 lines 9-17 13 Page 96 line 2 14 page 26 lines 2-5 15 Page 95 lines 24 & 25. See also page 35 lines 8,9, 24 &25 16 page 93 lines 10-24 17 Although plaintiff testified she was continuously screaming for help for her hour long plight, she testified that she kicked the door with her left foot, but did not testify that she was continuously kicking the door, or that she only used her left limbs {to the exclusion of using her right limbs also} to make noise to call for help. See pages 93 & 96. 18 page 94 lines 4-6. See also pg 93 lines 10-24. 19 Exhibit F, page 98 lines 16-21 20 Approximately 15 minutes total in apartment until taken by ambulance. See page 34 lines 4-24. See also page 33 lines 20-23 where plaintiff was described as going “immediately” to the “hospital” after the occurrence. 21 Exhibit F, page 35 lines 4-20 & page 36 lines 3-16 22 Exhibit F, page 99 lines 13-15 23See; Exhibit F, page 108 lines 21-24.Notably, plaintiff did not specifically state her activities prior to becoming trapped. Although she did provide extremely general testimony about what her average day would consist of prior to the incident- that testimony pertained to the disability she is currently under and how her life has been catastrophically changed and limited since the accident. Noticeably absent from the plaintiff’s testimony is any indication plaintiff left her apartment before she went to the basement and became entrapped. Plaintiff never stated that she had done anything or went anywhere at all earlier that day, particularly anywhere {or engaging in an activity} of particular significance, consequence, activeness, or stress inducing. See pages 108-111 24 Exhibit F, page 98 lines 4-5 25 Exhibit F, page 36 lines 7-16. 26 page 99 lines 8-12 27 See CPLR 4518 28 As Castro denies knowledge as mandatory information on work orders and whether information in that box can be changed, witness fails to satisfy CPLR 4518.
29 Defendant’s exhibit I 30 defendant’s exhibit H 31 Exhibit “I {attached to defendant motion}pages 7, 13. 32 The subject premise is included in the approximately 35 buildings Castro was property manager for as agent/employee of defendants’. See exhibit I page 14. 33 Exhibit “H” refers to Exhibit “H” attached to defendant’s motion. 34 See defendant attorney affirmation at paragraph 34. 35 See attorney affirmation in support of defendant’s motion at paragraph #43. 36 As Castro testified a sign up sheet is purportedly posted for tenants to request extermination, defendants’ witness(s) failed to show that the basement was free of mice and bugs and/or that it was regularly exterminated. 37 Attached to defendant’s motion at Exhibit G. 38 Notably, Acedvedo’s initial idea to set plaintiff Mrs. Rosenbaum free was to use a key. But Acevedo did not have his keys on him when he got downstairs even though he went down after being advised that she was trapped inside because the sole person attending to the building [Gomez] was at lunch with Acevedo’s key to the carriage room on his person. Plaintiff was too frantic after an hour of entrapment to recall the location of her key she had used over an hour ago, and thus, could not slide the key under the door. Acevedo looked in another part of the basement for a spare key but couldn’t find one and thus, had to use tools and considerable force to free plaintiff. See defendant’s exhibit “H” page 45. Further, given that the knob came off in plaintiff’s hand, it is arguably reasonable that Mrs. Rosenbaum did not think her key would free her. 39 See; Exhibit F pages 104-105. Although it wasn’t until she visited plaintiff while plaintiff was convalescing, that Ms. Berkowitz conveyed that she also was trapped inside the carriage room. Nothing in the record indicates that Mrs. Berkowitz did not get trapped before plaintiff’s incident or that Ms. Berkowitz’s incident was not orally reported. 40 See; exhibit F pages 103-104 41 See Exhibit G pages 19-20 Akiva Rosenbaum’s testimony at least raises a question as to whether Lichenstein was trapped in carriage room prior to March 19, 2008 and complained to Junior. See also Exhibit F page 103.
42 See Exhibit I pages 141, 142, 144. 43 See attorney affirmation in support at paragraph #37. 44 See attorney affirmation in support of motion at paragraph 41. 45 Attorney affirmation in support of motion at paragraph 41 46 See Exhibit I pages 97, 98. Notably, the failure of a super to inspect whether any work was performed by Santiago and/or whether work actually performed consisted a repair of the defect rather than exacerbation of the defect, violates Defendants custom and practice/ and or procedure. See Exhibit I page 98 lines 15-21. Notably, the record is bare that the super of the building at/around May 2006 performed the mandatory inspection after issuance of the work order and assignment of same to Santiago. 47 See exhibit H page 81 line 7-10. 48 See attorney affirmation in support of motion paragraph #62. 49 See attorney affirmation in support of motion paragraphs #51- 65. Plaintiffs note that defendant’s discussion of probable vs. possible in affirmation in support at paragraph #63 is undermined by review of definitions. See; American Heritage Dictionary, Third Edition. Probable- likely to happen or be true; likely but uncertain; plausible. Possible- capable of happening, existing, or being true.
50 Included at Exhibit “B” is a copy of plaintiff’s exchange of this medical expert’s opinions pursuant to CPLR 3101 (d). 51 see plaintiff’s exchange pursuant to CPLR 3101 (d) at Exhibit B annexed hereto and see Exhibit C annexed hereto. 52 The plaintiff’s familiarity with the conditions in the basement is relevant to the forseeability analysis. See generally; Malloy v. Delk Transmission, 191 A.D.2d 303 (1st Dep't 1993) [in determining whether it was it foreseeable that a reasonably careful, prudent individual would act as plaintiff did {in reading the meter in the well lit basement} court looked to evidence that the injured plaintiff had been to the location several times previous to the date of the occurrence, was aware of the conditions and was instructed to proceed intelligently so as not to subject himself to injury]. Compare; Broderick v Cauldwell-Wingate Co. (301 NY 182, 93 N.E.2d 629) where the plaintiff had no choice but to obey a superior's direction to continue no matter what the danger (see generally, Maddox v City of New York, 66 NY2d 270, 279, 496 N.Y.S.2d 726, 487 N.E.2d 553).
53 This affidavit was previously exchanged to defendant during prior motion practice as an exhibit in plaintiff’s opposition to defendant’s motion regarding plaintiff’s capacity.
54 See; Acosta v. Irdank Realty Corp., 38 Misc. 2d 859, 860 (N.Y. Sup. Ct. 1963) where court explained inquiry “Was this occurrence reasonably forseeable within the meaning of the law? The defendant takes the position that it was not.” The Court found” “That small children go around the house picking up everything within their reach and placing it in their mouths and attempting to eat it is well known. They often have a craving to put in their mouths and eat most unusual things. It would not be unreasonable, therefore, to foresee that [infant plaintiff] would pick up pieces of plaster and paint if they were lying around and eat them…..that in the setting and surrounding conditions which existed at the premises in question, the hazard which the broken walls presented should have been reasonably forseeable to the landlord. Given the broken walls and plaster, the lead content in the paint (established at the trial by the biochemist), the child in the apartment, the known propensities of children and the results that followed, I find that Yvette became ill with lead poisoning as a direct result of the defendant's negligence in failing to keep the premises in question in proper repair” [emphasis added].
55 See Exhibit “H” at page 20. 56 Contrast: Meyer v. Troy, 63 A.D.2d 757, 758 (3d Dep't 1978) [The infant plaintiff, after "going to the bathroom" behind a tree, went down behind the city garage to "buckle my pants". while buckling pants, "by mistake", he placed his belt through the door handle before buckling it. He contended that he "wasn't looking" as he buckled his pants and the belt "fell through" the handle of the door so that when he buckled it, he became fastened to the overhead door. As he was doing this he "started going up in the air" and when he got to "the top", the belt "broke" and he fell to the ground. Defendant's motion to dismiss, at the close of the plaintiff's case, was based on the ground that there was no defect in the premises and no proof as to who caused the door to be raised; and that the infant's testimony was incredible as a matter of law. The Appellate division dismissed the complaint and held “No actionable negligence was proved against the defendant. There was no proof of the existence of a defect or a trap upon the premises nor was there any proof of any prior accident of any nature having befallen a child on or around the garage premises. The standard of care recently enunciated by the Court of Appeals in Basso v Miller (40 NY2d 233) is one of reasonable care under the circumstances. Foreseeability shall be the measure of liability. Under the proof presented, it was not reasonably foreseeable that a child would strap himself to an exterior door handle of an overhead door and thereby injure himself. Any negligence of defendant in failing to cordon off the area would be a foreseeable cause of injury arising from the operation of the trucks, not the injury sustained here. It cannot be said that plaintiff has established the necessary element of proximate cause.” [emphasis added]. 57 See Exhibit “A” annexed hereto. 58 See paragraph #64 defendant attorney affirmation 59 Plaintiff acknowledges Eisman case factually inapposite. In that instance the question before the court was whether or not a duty even existed. Here, defendants do not demonstrate that no duty existed and in fact, concede a duty was owed. Nevertheless, plaintiff cites Eisman for the principle that any questions in the record regarding forseeability require denial of the motion as same are for trial. 60 See also: Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 585 (N.Y. 1994) [“Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration] [internal citations omitted] [emphasis added]. See also; Sheila C. v. Povich, 11 A.D.3d 120, 125 (1st Dep't 2004) “foreseeability……. generally presents a factual question and does not determine the existence of duty, but, rather, the scope of that duty once it is determined to exist” [internal citations omitted] [emphasis added]. 61 See paragraph 48 affirmation in support of defendant motion. 62 See; McCrorie v. Pergament Home Centers, Inc., 230 A.D.2d 776, 646 N.Y.S.2d 697, 698 (2d Dep't 1996) [plaintiff was injured in defendant's store when boxes fell on his head from a shelf, but the court held that the jury was not required to draw the permissible inference of negligence from application of the doctrine of res ipsa loquitur; the court stated that the doctrine presents a prima facie case allowing the jury to have the case submitted to it, but does not create a presumption of negligence]. Where defendant comes forward with evidence explaining the event and disproving the negligence, the plaintiff may be bound to produce direct evidence of negligence in order to meet his or her burden. Gross v. Temp Realty Corp., 5 A.D.2d 825, 170 N.Y.S.2d 872 (1st Dep't 1958). In the case at bar, defendant has failed to submit evidence proffering a non negligent explanation of plaintiff’s entrapment and/or evidence disproving that defendant was negligent in failing to repair the knob of a self closing door to a trap-like confined space, thus, the plaintiff in opposition is not required to produce evidence directly demonstrating defendant’s negligence to avoid dismissal of the complaint, particularly, since defendant is the movant herein. Contrast; Tora v. GVP AG, 31 A.D.3d 341, 819 N.Y.S.2d 730, 732 (1st Dep't 2006) [part of a sidewalk shed toppled due to high wind and struck plaintiff; the court, noting the res ipsa loquitur may be the basis for summary judgment in favor of plaintiff only in extreme circumstances, held that issues existed regarding whether the accident was the kind that ordinarily does not occur in the absence of negligence, due to defendant's contention that the wind was inordinately strong]. 63 Certain internal citations omitted |
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