| Sermos v Gruppuso |
| 2012 NY Slip Op 03623 [95 AD3d 985] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Glenn Sermos et al., Respondents, v Vincenza Gruppuso etal., Appellants. |
—[*1] DerGarabedian, Dillon, Nathan & Coluccio, Rockville Centre, N.Y. (Joseph Coluccio andHeather Nathan of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Suffolk County (Pastoressa, J.), dated May 11, 2011, which grantedthe plaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff Glenn Sermos (hereinafter the injured plaintiff) tripped and fell on a loose boardof the backyard deck at the defendants' home, causing him to fall into the attached pool andsustain injuries. There were no witnesses to the accident. It was later discovered that thedefendant Pietro Gruppuso had been attempting to repair a pool light earlier in the day, whichrequired him to remove two wooden boards from the attached deck, and that he failed to securethem back in place afterwards, leaving them loose and unstable.
The injured plaintiff, and his wife, suing derivatively, commenced the instant action seekingdamages, alleging that the defendants were negligent in the maintenance of their property, andthat their negligence was the proximate cause of the injured plaintiff's injuries. Followingdiscovery, which included the depositions of all parties, the plaintiffs moved for summaryjudgment on the issue of liability, relying primarily on the admissions of the defendants regardingthe loose boards on the backyard deck. The defendants opposed the motion, submitting andrelying primarily on certain notes contained in uncertified medical records of the injured plaintiffwhich state, in part, that he was injured while jumping into the pool. The Supreme Court grantedthe motion. The defendants appeal. We affirm.
"To impose liability upon a defendant in a trip-and-fall action, there must be evidence that adangerous or defective condition existed, and that the defendant either created the condition orhad actual or constructive notice of it" (Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 AD3d 629, 629[2009]; see Spindell v Town ofHempstead, 92 AD3d 669 [2012]; McMahon v Gold, 78 AD3d 908, 909 [2010]). Further, it must beestablished that a defendant landowner gave insufficient warning of any latent, [*2]dangerous condition on his or her property, since such warning "is anatural counterpart to his [or her] duty to maintain his [or her] property in a reasonably safecondition" (Galindo v Town ofClarkstown, 2 NY3d 633, 636 [2004]; see Martino v Stolzman, 18 NY3d 905 [2012]).
Here, the plaintiffs met their burden on their motion for summary judgment by submittingevidence that the defendants created the defective and dangerous condition that was theproximate cause of the injured plaintiff's injuries (see Henderson v L & K CollisionCorp., 146 AD2d 569, 571 [1989]), and failed to warn of the latent dangerous condition (see Martino v Stolzman, 18 NY3d905 [2012]; Galindo v Town of Clarkstown, 2 NY3d at 636; Tagle v Jakob,97 NY2d 165, 169 [2001]). Accordingly, the burden shifted to the defendants "to tenderevidence, in a form admissible at trial, sufficient to raise a triable issue of fact" (Reyes v Arco Wentworth Mgt. Corp.,83 AD3d 47, 50 [2011]).
The Supreme Court correctly concluded that the defendants failed to tender admissibleevidence sufficient to raise a triable issue of fact as to the proximate cause of the injuredplaintiff's injuries. The defendants submitted only certain records from Stony Brook UniversityMedical Center, which contained notations that the injured plaintiff was injured while jumpinginto the pool.
Initially, we observe that the notations in the hospital record upon which the defendants relywere not attributed to the injured plaintiff. In any event, even if the subject notations werestatements attributable to him, none of these notations was germane to his diagnosis or treatmentand, at trial, would not be admissible for their truth under the business records exception to thehearsay rule (see CPLR 4518; People v Ortega, 15 NY3d 610 [2010]; Williams vAlexander, 309 NY 283 [1955]; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897 [2011];Carcamo v Stein, 53 AD3d 520[2008]). The inadmissibility of these notations is especially apt where, as here, such evidence isthe sole proffered basis for the denial of summary judgment (see Phillips v Kantor & Co.,31 NY2d 307, 310 [1972]), and where the nonmoving party is not able to demonstrate anacceptable excuse for its failure to tender that evidence in admissible form (see Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated FurMfrs., 46 NY2d 1065, 1068 [1979]; Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897 [2011];Allstate Ins. Co. v Keil, 268 AD2d 545, 545-546 [2000]).
Accordingly, the Supreme Court properly excluded the medical records from itsconsideration, and properly held that the defendants failed to raise a triable issue of fact inopposition to the plaintiffs' motion (seeMonteleone v Jung Pyo Hong, 79 AD3d 988 [2010]; Joseph v Hemlok Realty Corp., 6 AD3d 392, 393 [2004];Allstate Ins. Co. v Keil, 268 AD2d 545 [2000]; Schiffren v Kramer, 225 AD2d757 [1996]; Henderson v L & K Collision Corp., 146 AD2d at 571). Mastro, A.P.J.,Balkin, Sgroi and Cohen, JJ., concur.