FISHMAN v. ROMANO (2025)

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered on or about August 6, 2024, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff Randi Fishman, who had never been to defendant's home before, fell down stairs while trying to retrieve her coat from a rack above a basement stairway behind a closed door in the kitchen.  She testified that the lighting from the kitchen was dim, and she could not see anything but the coats in what she believed was a closet.  It is undisputed that the lighting in the stairway, which was controlled by a light switch on the kitchen wall, was not on when plaintiff fell.  Plaintiff did not testify that the photographs of the accident location in the record, relied upon by defendant's expert during his inspection two-and-a-half years after the accident, accurately depicted the conditions as they were when she fell.  Further, defendant did not submit evidence to show that the light fixtures remained the same after the accident, as depicted in the photographs.

Considering the allegedly dim lighting from the kitchen and plaintiff's unfamiliarity with defendant's home, defendant failed to establish, prima facie, that the coat rack hung on the wall above the basement stairway was open, obvious, and not inherently dangerous as a matter of law (see Sawyers v. Troisi, 95 A.D.3d 1293, 1294, 945 N.Y.S.2d 188 [2d Dept. 2012];  Pollack v. Klein, 39 A.D.3d 730, 730, 835 N.Y.S.2d 290 [2d Dept. 2007];  cf.  Gross v. Gross, 135 A.D.3d 636, 637, 24 N.Y.S.3d 265 [1st Dept. 2016]).  Additionally, defendant failed to address plaintiff's allegation that the lighting in the stairway was insufficient at the time of the accident and a proximate cause of plaintiff's fall (see Rodriguez v. Board of Educ. of the City of N.Y., 107 A.D.3d 651, 652, 969 N.Y.S.2d 25 [1st Dept. 2013]).  To the extent defendant's expert observed in passing that the top of the stairwell was “readily perceptible” when the door was in an open position, his opinion is insufficient to eliminate any triable issue of fact as to plaintiff's allegation of inadequate lighting because his inspection of the premises took place more than two-and-a-half years after the accident (see Burgos v. Montemurro Enters. LLC, 102 A.D.3d 629, 630, 958 N.Y.S.2d 591 [1st Dept. 2013]).  Nor is there any admissible evidence that the conditions on the day of the expert's inspection were the same as the day of the accident.