MORALES v. PISTILLI REALTY GROUP LLC (2021)

Upon the foregoing papers, the motion of the plaintiff Carlos Morales to reargue and vacate Justice Donna Mills' Order dated August 25, 2020, which granted Defendants' motion for summary judgment, is decided as follows:

A motion for leave to reargue a prior motion pursuant to CPLR 2221 shall be made to the judge who signed the Order, unless he or she is for any reason unable to hear it. By virtue of Justice Mills' retirement, this motion is being decided by this Court.

A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law (see, Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept. 1992]).

Plaintiff alleges that on March 29, 2018, he was injured as a result of slipping and falling on freshly mopped interior stairs in the building where he lives, located at 2226 Loring Place, Bronx, New York. Plaintiff testified at his deposition that the area outside his third floor apartment was wet, specifically the hallway on his floor outside his apartment door, but that he didn't know the steps in the stairwell had also been mopped. He further testified that he slipped on the very first step on his way down. Plaintiff testified that after his accident, the superintendent came to where the plaintiff fell, still holding his mop in his hand. Plaintiff further testified that he believed the super was mopping the stairs on the second floor at the time of his accident.

The defendants' witness, Miguel Lopez Vasquez, testified at his deposition that on the day in question, while working for the defendants as superintendent, he was mopping the lobby when he heard the plaintiff fall on the third-floor steps. He went up and saw plaintiff on the stairs, between the third and second floors. He testified that he had just mopped the stairs in the third-floor area 3 to 4 minutes before he heard Mr. Morales slip and fall. Mr. Morales denied mopping the floor in a negligent manner and instead testified that the stairs had already dried at the time of plaintiff's accident.

Plaintiff maintains that the defendants in this case, on their motion for summary judgment had the burden of showing that they did not create a dangerous condition. Plaintiff claims the stairs were mopped negligently and were still wet, causing him to slip and fall down the stairs. Therefore, plaintiff argues that the prior court misapplied binding and long established law and erroneously granted the defendants' motion for summary judgment, dismissing his complaint.

In opposition, defendants argue that they did not have a duty to warn because the condition was open and obvious and demonstrated that plaintiff was aware of the wet condition prior to his fall.

The Court now grants reargument. “ ‘A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the allegedly hazardous condition nor had actual or constructive notice of its existence’ ” (Griffin v PMV Realty, LLC, 181 AD3d 912, 912-913 [2nd Dept. 2020], quoting Steele v Samaritan Found., Inc., 176 AD3d 998, 999 [2nd Dept. 2019]).

A defendant property owner has a duty to maintain its premises in a “reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v Miller, 40 NY2d 233, 241 [1976] [internal quotation marks omitted]). However, it does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous (see Cupo v Karfunkel, 1 AD3d 48, 52 [2003]). Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury (see Pellegrino v Trapasso, 114 AD3d 917, 918 [2014]). Similarly, whether a condition is open and obvious depends on the circumstances of the case, and something that ordinarily would be readily observable may be obscured by inadequate illumination (see, Twersky v Incorporated Vil. of Great Neck, 127 AD3d 739, 740 [2015]; Russo v Incorporated Vil. of Atl. Beach, 119 AD3d 764 [2014]).

Defendants' contention that the wet stairs constituted an open and obvious hazard or danger obviating the duty to warn is unavailing. A finding that a condition is open and obvious requires that the condition “be of a nature that could not reasonably be overlooked by anyone in the area whose eyes were open” (Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 71 [1st Dept. 2004]). There is no evidence establishing that plaintiff actually knew that the steps were wet or had just been mopped, so it cannot be said as a matter of law that the wet condition of the stairs was open and obvious. Moreover, the issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury (Shah v Mercy Med. Ctr., 71 AD3d 1120. 1120 [2d Dept. 2010]).

Accordingly, it is hereby,

ORDERED that reargument is granted, and upon reargument, the Order of the Court dated August 25, 2020 (Mills, J.) is vacated and recalled, and the motion of the defendants for summary judgment dismissing the complaint is denied.

This is the Decision and Order of the Court.

Adrian N. Armstrong, J.