| Caso v Manmall, Inc. |
| 2009 NY Slip Op 09065 [68 AD3d 470] |
| December 8, 2009 |
| Appellate Division, First Department |
| Lisa Marie Caso, Respondent, v Manmall, Inc., et al.,Appellants, and Cushman & Wakefield, Inc., et al., Respondents. |
—[*1] McMahon, Martine & Gallagher, LLP, Brooklyn (Patrick W. Brophy of counsel), for LisaMarie Caso, respondent. Cuttita LLP, New York (Scott A. Koltun of counsel), for Cushman & Wakefieldrespondents.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 20, 2008,which, in an action for personal injuries sustained in a slip and fall on the steps of an escalatorlocated in the vestibule of an interior mall and leading down to a subway station, grantedplaintiff's motion to vacate an order that had dismissed the action pursuant to 22 NYCRR 202.27when plaintiff failed to appear at a compliance conference, unanimously affirmed, without costs.
Plaintiff's attorney, who had appeared at all prior conferences, including the April 20, 2007compliance conference at which the May 25, 2007 date for a further compliance conference wasset, provided a reasonable excuse for his failure to appear at the May 25 conference, namely, thatthe May 25 date was not set forth in the April 20 conference order, and that he either did not hearthe May 25 date orally announced at the April 20 conference, or, if he heard it, he forgot itbecause he neglected to write it down (see Mediavilla v Gurman, 272 AD2d 146 [2000]).The delay caused by plaintiff's failure to appear on two occasions for court-ordered depositionswas neither protracted nor prejudicial, and defendants' claims of longstanding, protracted,deliberate, willful and contumacious disregard of disclosure orders are not otherwise borne outby the record.
Plaintiff's affidavit in support of the motion made a sufficient showing of merit by providingdetails concerning the date, time, and location of the accident and the manner in which itoccurred, and asserting that it had been continuously raining on the day of the accident, that thefloor outside of defendants' premises leading up to the escalator was wet from the rain, and thatno measures were taken to absorb the rainwater or to prevent it from being tracked into thevestibule and then onto the escalator steps. We reject defendants' argument that plaintiff'saffidavit should be discounted as an attempt to create a new theory of liability not found in the[*2]pleadings. Throughout her complaint, amended complaint,and bill of particulars plaintiff consistently alleged that defendants were negligent not only intheir maintenance and operation of the escalator itself but also in their maintenance of theentranceways and floor leading up to the escalator steps. We also reject defendants' argumentthat a prior order by another justice precludes plaintiff's claims. The prior order, which granted amotion for summary judgment dismissing a third-party complaint against the MetropolitanTransportation Authority (MTA), determined that the escalator was not the property of the MTAbut rather the Transit Authority. While such determination likely precludes plaintiff fromproving that defendants were responsible for the operation and maintenance of the escalator, itdoes not preclude her from proving that defendants were responsible for the maintenance of thefloor leading up to the escalator. That issue has not been litigated, and, at least in the presentcontext, it appears that it should be (see Levy v New York City Hous. Auth., 287 AD2d281 [2001] [showing of merit necessary on motion to vacate a 22 NYCRR 202.27 defaultsomething less than what is necessary in opposition to a motion for summary judgment]).Concur—Tom, J.P., Nardelli, Renwick, Freedman and Roman, JJ. [Prior CaseHistory: 2008 NY Slip Op 32315(U).]