MASHOZHERA v. EL NUEVO JB BAKERY INC (2021)

Order, Supreme Court, Bronx County (Donald A. Miles, J.), on or about May 18, 2020, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Defendants failed to establish their prima facie entitlement to judgment as a matter of law.  Although the manager of the property at the time of the accident testified that no one else fell on the bakery's exterior steps and no violations were issued for the location before the accident, defendants submitted no expert affidavit with their moving papers opining that the exterior steps were not designed in a negligent manner and complied with any rules or standards applicable at the time of construction (see Burke v. Yankee Stadium, LLC, 146 A.D.3d 720, 721, 47 N.Y.S.3d 261 [1st Dept. 2017]).

Defendants also failed to meet their initial burden of showing that the bakery's exterior steps were open and obvious and not inherently dangerous.  There are no photographs in the record that show how the exterior steps would appear to a pedestrian, such as plaintiff, when exiting the store (see e.g. Salman v. L–Ray LLC, 93 A.D.3d 568, 569, 941 N.Y.S.2d 52 [1st Dept. 2012]).  Plaintiff testified at her deposition that she was looking down where she was walking before she fell and believed that the bottom step caused the accident because it was not level with the sidewalk.  Even if plaintiff saw the configuration of the bakery's exterior steps when she entered the store, the evidence that the bottom step was less visible to her as she was exiting the store is sufficient to raise a triable issue of fact precluding summary judgment (see Saretsky v. 85 Kenmare Realty Corp., 85 A.D.3d 89, 93, 924 N.Y.S.2d 32 [1st Dept. 2011]).

Furthermore, defendants failed to meet their initial burden of showing that the entranceway to the bakery was not required to be equipped with a handrail because they did not address the allegation in their moving papers (see Jones v. 550 Realty Hgts., LLC, 89 A.D.3d 609, 932 N.Y.S.2d 778 [1st Dept. 2011]).

Given defendants’ failure to meet their initial burden, this Court need not consider the sufficiency of plaintiff's opposition papers (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]).