| Christian v Railroad Deli Grocery |
| 2008 NY Slip Op 09743 [57 AD3d 599] |
| December 9, 2008 |
| Appellate Division, Second Department |
| Karen Christian et al., Appellants, v Railroad Deli Grocery,Defendant, and Joe II Realty Corp., Respondent. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by theirbrief, from (1) so much of an order of the Supreme Court, Suffolk County (Weber, J.), dated March26, 2008, as granted that branch of the motion of the defendant Joe II Realty Corp. which was forsummary judgment dismissing the complaint insofar as asserted against it, and (2) from so much of anorder of the same court dated June 10, 2008, as denied that branch of their motion which was for leaveto renew, and upon, in effect, reargument, adhered to the original determination.
Ordered that the appeal from so much of the order dated March 26, 2008, as granted that branchof the motion of the defendant Joe II Realty Corp. which was for summary judgment dismissing thecomplaint insofar as asserted against it is dismissed, as that portion of the order was superseded by somuch of the order dated June 10, 2008, as was made upon reargument; and it is further,
Ordered that the appeal from so much of the order dated June 10, 2008, as denied that branch ofthe plaintiffs' motion which was for leave to renew is dismissed as academic; and it is further,
Ordered that the order dated June 10, 2008, is reversed insofar as reviewed, on the law, uponreargument, so much of the order dated March 26, 2008, as granted that branch of the motion of thedefendant Joe II Realty Corp. which was for summary judgment dismissing the complaint [*2]insofar as asserted against it is vacated, and that branch of the motion isdenied; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
On the morning of January 24, 2005, the plaintiff Karen Christian (hereinafter the injured plaintiff)went to a deli located on the first floor of a building owned by the defendant Joe II Realty Corp.(hereinafter the respondent). When she left, she slipped on ice that had accumulated on a concreteramp leading down from the door of the deli to the sidewalk, fell on the ramp, and allegedly sustainedcertain injuries. The injured plaintiff and her husband, suing derivatively, then commenced the instantpersonal injury action against the respondent and another defendant.
In the first order appealed from, the Supreme Court, inter alia, granted that branch of therespondent's motion which was for summary judgment dismissing the complaint insofar as assertedagainst it. In the second order appealed from, the Supreme Court, among other things, upon, in effect,reargument, adhered to its original determination.
The Supreme Court, upon reargument, should have vacated its original determination and deniedthat branch of the respondent's motion which was for summary judgment dismissing the complaintinsofar as asserted against it. Contrary to the Supreme Court's determination, in opposition to therespondent's demonstration of its prima facie entitlement to judgment as a matter of law, the plaintiffsraised triable issues of fact (see Grayson vHall, 31 AD3d 606, 606-607 [2006]). The plaintiffs provided evidence tending to show thatthe respondent was negligent, specifically, an affidavit from a "certified safety professional" establishingthat it violated certain applicable building code provisions which required that the ramp have a handrail(see Major v Waverly & Ogden, 7 NY2d 332, 336 [1960]). Furthermore, the injuredplaintiff's deposition testimony that she unsuccessfully attempted to "reach[ ]" out and "grab forsomething . . . to hold on to" after slipping on the ice, raised a triable issue of fact as towhether the absence of a handrail required by law was a proximate cause of her injuries (see Ocasio v Board of Educ. of City ofN.Y., 35 AD3d 825, 826 [2006]; Scala v Scala, 31 AD3d 423, 425 [2006]; Asaro v Montalvo, 26 AD3d 306, 307[2006]; Viscusi v Fenner, 10 AD3d361, 361-362 [2004]; Hotzoglou v Hotzoglou, 221 AD2d 594 [1995]; see also Spallina v St. Camillus Church, 53AD3d 650, 651 [2008]).
The plaintiffs' contention that the Supreme Court erred in denying that branch of their motion whichwas for leave to renew has been rendered academic in light of our determination (see Payano v Milbrook Props., Ltd., 39AD3d 518, 520 [2007]). Spolzino, J.P., Covello, Angiolillo and Chambers, JJ., concur.