DEL ROSARIO v. LIVERPOOL LODGING LLC LLC (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying defendants' motion in part and reinstating the complaint, as amplified by the bill of particulars, except insofar as it alleges that defendants were negligent in failing to warn plaintiff of dangerous and defective conditions, and as modified the order is affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for personal injuries she allegedly sustained when she fell while stepping out of a bath tub at a hotel.  Supreme Court granted defendants' motion seeking summary judgment and dismissed the complaint, and we now modify.  We agree with plaintiff that the court erred in granting the motion on the ground that the cause of plaintiff's fall was based on mere speculation (see Gafter v. Buffalo Med. Group, P.C., 85 A.D.3d 1605, 1606, 925 N.Y.S.2d 297 [4th Dept. 2011];  cf. McGill v. United Parcel Serv., Inc., 53 A.D.3d 1077, 1077, 861 N.Y.S.2d 887 [4th Dept. 2008] ).  In support of their motion, defendants submitted plaintiff's deposition testimony, which, when viewed in the light most favorable to plaintiff and giving her the benefit of every reasonable inference (see Esposito v. Wright, 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430 [4th Dept. 2006] ), establishes that plaintiff believed that the alleged dangerous or defective configuration or installation of the tub caused her to fall and sustain injuries.  In addition, defendants failed to establish in support of their motion the absence of a dangerous or defective condition, and thus they were not entitled to summary judgment dismissing the complaint on that ground either (see Zelie v. Town of Van Buren, 79 A.D.3d 1801, 1802, 914 N.Y.S.2d 497 [4th Dept. 2010];  LaPaglia v. City of Buffalo, 239 A.D.2d 962, 962, 661 N.Y.S.2d 798 [4th Dept. 1997] ).  We agree with defendants, however, that the court properly granted their motion to the extent that plaintiff alleged that they were negligent in failing to warn of dangerous and defective conditions.  Defendants met their initial burden of establishing that any dangerous or defective condition was open and obvious, and plaintiff failed to raise a triable issue of fact (see Sniatecki v. Violet Realty, Inc., 98 A.D.3d 1316, 1318–1319, 951 N.Y.S.2d 628 [4th Dept. 2012];  see generally Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001];  Hayes v. Texas Roadhouse Holdings, LLC, 100 A.D.3d 1532, 1533, 954 N.Y.S.2d 348 [4th Dept. 2012] ).  We therefore modify the order by denying the motion in part and reinstating the complaint, as amplified by the bill of particulars, except to the extent that it alleges that defendants were negligent in failing to warn plaintiff of dangerous and defective conditions.