HAMILTON v. 208 214 25TH ST LLC (2023)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered July 29, 2022, which granted plaintiff's motion for a default judgment to the extent of directing an inquest regarding defendant's liability, if any, unanimously modified, on the law, to strike the directive for an inquest as to defendant's liability, grant a default judgment as to liability against defendant, and otherwise affirm, without costs.

Defendant property owner is precluded from arguing on appeal that plaintiff failed to give proper notice of electronic filing of the summons and complaint pursuant to Uniform Rules of the Trial Courts (22 NYCRR) § 202.5–bb(b)(3) (see CPLR 3211[a][8]) because it defaulted on the motion at issue, thus failing to raise that argument below (see generally Antiohos v. Morrison, 144 A.D.3d 427, 40 N.Y.S.3d 397 [1st Dept. 2016]).

The record, including plaintiff's supporting affidavit and a New York City Department of Buildings Peremptory Order to Vacate, served upon defendant owner, sufficiently substantiated defendant's liability as owner of the building.  Such evidence also supported plaintiff's allegations that her trip and fall from an unguarded elevated roof area adjacent to a roof deck, down to the alley below, was a proximate cause of the injuries she sustained due to owner's alleged unsafe rooftop (see Powers v. 31 E 31 LLC, 123 A.D.3d 421, 424, 998 N.Y.S.2d 23 [1st Dept. 2014]).  There can be more than one cause that contributes to an accident's occurrence (see Gutierrez Bautista v. Grand Ambulette Serv., Inc., 140 A.D.3d 639, 640, 33 N.Y.S.3d 717 [1st Dept. 2016];  Nakasato v. 331 W. 51st Corp., 124 A.D.3d 522, 524, 3 N.Y.S.3d 2 [1st Dept. 2015]).