| Costen v Cohen |
| 2015 NY Slip Op 00717 [124 AD3d 819] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| Helena Costen, Appellant, v Charles Cohen etal., Respondents. |
Robert A. Flaster, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York,N.Y. [Brian J. Isaac and Beth S. Gereg], of counsel), for appellant.
Wilson, Elser, Moskowitz Edelman & Dicker LLP, New York, N.Y. (JosephLaird of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Velasquez, J.), dated December 18, 2013,which granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is denied.
The plaintiff was shopping at a retail variety store owned and operated by thedefendants. The plaintiff alleges that, after entering the store, she descended an internalstaircase, which had "open risers" (open space between steps), to the lower level of thestore in search of a particular pocketbook. Thereafter, unable to locate the desired item,she ascended the same internal staircase in order to exit the store. Before reaching thetop, the plaintiff's left foot got "caught" in one of the open risers and she fell, sustaininginjuries. Following the completion of discovery, the defendants moved for summaryjudgment. The Supreme Court granted the motion, and the plaintiff appeals.
The Supreme Court erred in granting the defendants' motion for summary judgmentdismissing the complaint. "[T]he prima facie showing which a defendant must make on amotion for summary judgment is governed by the allegations of liability made by theplaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2010];see Lipari v Town of OysterBay, 116 AD3d 927 [2014]; Miller v Village of E. Hampton, 98 AD3d 1007 [2012]). Inthe instant matter, the defendants failed to establish their prima facie entitlement tojudgment as a matter of law because they did not address specific claims in the plaintiff'ssupplemental bill of particulars that the subject staircase was in a hazardous conditiondue to conditions including the lack of uniformity of the open risers (see Joseph v City of NewYork, 122 AD3d 800 [2014]; Martinez v 1261 Realty Co., LLC, 121 AD3d 955 [2014]).Since the defendants did not demonstrate their prima facie entitlement to judgment as amatter of law, the Supreme Court should have denied their motion for summaryjudgment dismissing the complaint, regardless of the sufficiency of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Balkin, J.P., Dickerson, Sgroi and Cohen, JJ., concur.