YOUNG v. 1530 ROSEDALE PARTNERS LLC (2022)

In this personal injury action, Second Third-Party Defendant, Buddy Young, moves for summary judgment pursuant to CPLR 3212 as to Second Third-Party Plaintiff, 1530 Rosedale Partners LLC (“Rosedale”), and dismissing the Second Third-Party Complaint in its entirety. Third-Party Defendants Richard Delgado, Jr. R.D. Construction and Home Improvement, LLC (“Delgado”) cross-moves for summary judgment, dismissing the Third-Party Complaint by Rosedale. Rosedale opposes only Buddy Young's motion for summary judgment.

Plaintiff commenced this action against Rosedale on September 24, 2018. On September 28, 2020 Rosedale commenced a third-party action against Delgado. On January 14, 2021 Rosedale filed a second third-party complaint against the plaintiff's son, Buddy Young.

This action arises from an accident that occurred on January 13, 2018, at approximately 9:00 a.m., at the premises located at 1530 Rosedale Avenue, Bronx, New York. Rosedale owns the premises which is a three-family residential building. Plaintiff alleges in the complaint that she was leaving her apartment on the third floor of the building with one of the grandsons, when she was caused to fall down the staircase in between the third and second floors. She stated in her deposition testimony that after walking slowly about three to four steps, she started to lose her balance and then tried to grab onto the handrail again, “but it wasn't there.” She added that the “rail was broke, so I couldn't grab it, so I had nothing to get my balance back.” She alleges that the incident occurred because the lighting was poor and because the handrail on the staircase was broken, loose, and/or detached.

The second third-party complaint is founded upon allegations that Buddy Young caused the accident in the main action by standing on and/or breaking the handrail and leaving it in an unsafe condition. Buddy Young testified at his deposition that he did not stand on the handrail, nor did he break the handrail.

In opposition to the motion, Rosedale contends that prior to the plaintiff's accident, Delgado (building's handyman) saw Buddy Young stand on the handrail to change the lightbulbs which were located at the bottom of the subject staircase. Rosedale contends that Buddy Young is responsible for the plaintiff's accident.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]).

Based upon the conflicting testimony presented, a triable issue of fact precludes summary judgment in favor of Buddy Young. A question of fact exists as to whether Buddy Young stood on the handrail prior to plaintiff's accident causing it to break.

Accordingly, it is hereby

ORDERED that the motion of second third-party defendant, Buddy Young for an order granting summary judgment dismissing all the second third-party complaint is denied in its entirety; and it is further

ORDERED that the third-party defendants Richard Delgado, Jr., and R.D. Construction and Home Improvement, LLC's cross motion for summary judgment dismissing the third-party complaint by Rosedale is granted and the third-party action is dismissed against third party defendants Richard Delgado, Jr. R.D. Construction and Home Improvement, L.L.C.

This is the Decision and Order of the Court.

Adrian Armstrong, J.