| Signorelli v Troy Lodge #141 Benevolent & Protective Order ofElks |
| 2013 NY Slip Op 05030 [108 AD3d 831] |
| July 3, 2013 |
| Appellate Division, Third Department |
| Marilyn F. Signorelli et al., Appellants, v TroyLodge #141 Benevolent and Protective Order of Elks,Respondent. |
—[*1] Boeggeman, George & Corde, PC, Albany (Paul A. Hurley of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (McDonough, J.), enteredMarch 21, 2012 in Rensselaer County, which granted defendant's motion for summaryjudgment dismissing the complaint.
Plaintiff Marilyn F. Signorelli (hereinafter plaintiff) tripped and fell whiledescending a carpeted staircase in defendant's building in the City of Troy, RensselaerCounty. Plaintiff and her husband, derivatively, commenced this negligence actionclaiming that the injuries she suffered in this fall were caused by the defective conditionof the staircase. Defendant moved for summary judgment dismissing the complaint, andSupreme Court granted the motion. Plaintiffs appeal.
To establish a prima facie entitlement to summary judgment, defendant was requiredto show that it maintained the staircase "in a reasonably safe condition and that [it]neither created nor had actual or constructive notice of the allegedly dangerouscondition" (Decker vSchildt, 100 AD3d 1339, 1340 [2012]; see Raczes v Horne, 68 AD3d 1521, 1522 [2009]).Defendant met this burden by submitting the deposition testimony of two members of itsboard of trustees establishing that no one had previously fallen on the stairs orcomplained to defendant that they were dangerous, and that the carpeting on the stairshad been in place since the time of [*2]construction manyyears previously.[FN*]One of the trustees testified that the carpet was worn, and that the board had thereforedetermined before plaintiff's accident that it should be replaced, but further stated that theplanned renovation was intended to keep the lodge competitive in attracting weddings,parties and other business, and did not result from any safety concerns, as "we knewthere was no break in the carpet." The trustees further testified that the staircase waswell-lit with handrails on both sides and that defendant employed a full-timemaintenance worker whose responsibilities included cleaning and caring for the stairs.This testimony was sufficient to shift the burden to plaintiffs to establish the existence ofissues of fact requiring a trial (see Timmins v Benjamin, 77 AD3d 1254, 1254-1255[2010]; Ennis-Short vOstapeck, 68 AD3d 1399, 1400 [2009]).
Plaintiff testified that there was a hole in the carpet, but was unable to describe thehole or its dimensions. Photographs of the staircase revealed that the carpet was worn,but plaintiff conceded that they did not reveal any holes. Nothing in plaintiffs'submissions demonstrated that the worn condition of the staircase carpeting wasdangerous or that a causal connection existed between the carpet's condition andplaintiff's fall. Thus, plaintiffs failed to raise issues of fact as to whether defendantmaintained its premises in a reasonably safe condition (see Knickerbocker v UlsterPerforming Arts Ctr., 74 AD3d 1526, 1527 [2010]; Reid v Schalmont SchoolDist., 50 AD3d 1323, 1325 [2008]; Tejada v Jonas, 17 AD3d 448, 448 [2005]).
Peters, P.J., Rose and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: According to thetrustees, the stairs were constructed either in 1973 or in the early 1980s when an additionwas built.