PALMER v. 165 EAST 72ND APARTMENT CORPORATION (2006)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated September 14, 2005, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for injuries she allegedly sustained when she fell while descending an interior staircase in the defendants' residential apartment building.   The plaintiff's deposition testimony, submitted by the defendants in support of their motion for summary judgment, demonstrated that the segment of the staircase where the plaintiff fell did not have a handrail.   Moreover, photographs submitted also established that the handrail did not extend the full length of the stairway.   Therefore, the defendants failed to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).  “Even if the fall was precipitated by a misstep, ‘[g]iven the plaintiff's testimony that [she] reached out to try to stop [her] fall, there is an issue of fact as to whether the absence of [handrails] was a proximate cause of [her] injury’ ” (Asaro v. Montalvo, 26 A.D.3d 306, 307, 812 N.Y.S.2d 558, quoting Kanarvogel v. Tops Appliance City, 271 A.D.2d 409, 411, 705 N.Y.S.2d 644;  see Viscusi v. Fenner, 10 A.D.3d 361, 362, 781 N.Y.S.2d 121).