| Aguilar v Anthony |
| 2011 NY Slip Op 00168 [80 AD3d 544] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Ana Delia Aguilar et al., Respondents, v Neville Anthony et al.,Appellants. |
—[*1] Paul Ajlouny & Associates, P.C., Garden City, N.Y. (Neil Flynn of counsel), forrespondents.
In an action to recover damages for personal injuries and wrongful death, etc., the defendantsappeal from an order of the Supreme Court, Nassau County (Adams, J.), entered March 18, 2010,which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion for summaryjudgment dismissing the complaint is granted.
The decedent, Fernando Aguilar, was found at the bottom of a staircase connecting the first andsecond floors of a house owned by the defendants and leased to the family of the decedent's daughter,the plaintiff Ana Delia Aguilar (hereinafter the plaintiff). The plaintiff, who was in her room on thesecond floor, heard a noise, rushed out of her room, and found the decedent at the bottom of thestaircase. She did not see the decedent fall and did not know why he fell.
The decedent, who normally wore glasses, was not wearing his glasses at the time his body wasfound, and the plaintiff later found his glasses in his room on the second floor. The only light illuminatingthe staircase was the hallway light that the plaintiff herself had turned on when she went out into thehallway after hearing the noise. The hospital record indicated the decedent had a history of seizures andtook dilantin. The decedent died without explaining how the incident occurred. The plaintiff alleged thatshe had previously complained to the defendant Neville Anthony that the third step from the top of thestaircase was defective in that it would move downward when pressure was applied to the middleportion of the step.
The plaintiff and the decedent's wife, derivatively, commenced this action against the defendants.The defendants moved for summary judgment, contending that the jury would have to speculate that thedecedent's death was proximately caused by any negligence on their part. The Supreme Court deniedthe motion. We reverse.[*2]
The defendants established their entitlement to judgment as amatter of law by demonstrating, prima facie, that the jury would have to speculate as to the cause of thedecedent's fall (see Martone v Shields,71 AD3d 840 [2010]; Reiff vBeechwood Browns Rd. Bldg. Corp., 54 AD3d 1015 [2008]; Denicola v Costello, 44 AD3d 990[2007]; Birman v Birman, 8 AD3d219 [2004]; Curran v Esposito, 308 AD2d 428 [2003]). In opposition, the plaintiffs failedto raise a triable issue of fact. Contrary to the plaintiffs' contention, there was no evidence connectingthe alleged unsafe condition of the staircase to the decedent's fall (see Martone v Shields, 71 AD3d 840 [2010]; Reiff v Beechwood Browns Rd. Bldg.Corp., 54 AD3d 1015 [2008]; Denicola v Costello, 44 AD3d at 990; Lissauer v Shaarei Halacha, Inc., 37 AD3d427 [2007]; Birman v Birman, 8 AD3d at 219; Teplitskaya v 3096 OwnersCorp., 289 AD2d 477 [2001]).
Additionally, the Noseworthy doctrine (see Noseworthy v City of New York, 298NY 76 [1948]) does not apply to this case since the plaintiffs and the defendants had equal access toknowledge of the events which caused the decedent's death (see Martone v Shields, 71 AD3dat 840; Kuravskaya v Samjo Realty Corp., 281 AD2d 518 [2001]; Gayle v City of NewYork, 256 AD2d 541 [1998]). In any event, the plaintiffs were not relieved of the obligation toprovide some proof from which negligence could reasonably be inferred, and they failed to meet thisburden (see DeLuca v Cerda, 60 AD3d721 [2009]; Blanco v Oliveri, 304 AD2d 599 [2003]; Lynn v Lynn, 216 AD2d194 [1995]). Angiolillo, J.P., Eng, Belen and Lott, JJ., concur.