On April 18, 2023, the Honorable Delores J. Thomas of Kings County Supreme Court issued an order granting in full Clark & Fox’s motion for summary judgment on behalf of the insured landlord in a trip and fall case, Rashida Johnson v. 1451 Associates, LP, et al., Index No. 513208/2020.
Plaintiff, a tenant of the insured building, alleged that she tripped on a small epoxy patch on the top step of a flight of stairs in the insured’s lobby, which allegedly caused her to fall down the stairway and onto the lobby floor. The insured’s superintendent had applied the epoxy patch approximately 12 to 13 years prior to the accident, to repair a small chip in that step.
In support of the motion, Clark & Fox relied on Plaintiff’s own deposition testimony that she was well aware of the epoxy patch prior to the accident; that she had used the subject stairway without incident on numerous occasions; and that there was nothing obstructing her view of the stairway on the date of the accident. In fact, Plaintiff testified that she first became aware of the patch approximately four years prior to the accident, when she moved into the insured building; and that she used the stairway approximately two to three times per day in the approximately four years prior to the accident, without incident. She testified that she had never seen any reason to avoid the epoxy patch and had never attempted to do so. On that basis, we argued that the patch was open and obvious and not inherently dangerous as a matter of law.
We also offered evidence in the form of an affidavit by the insured landlord that there were no prior complaints or accidents; and that U.S. Department of Housing and Urban Development inspection reports from 2008, 2011, 2015, and, most recently, 2018 do not identify any defects in the stairway.
Finally, we submitted an affidavit by Engineer Jeffrey J. Schwalje, P.E., in which he opined that the patch did not present a tripping hazard; that the superintendent had adequately repaired the step prior to the accident; that there were no code violations; and that the entire stairway was properly maintained and safe for use.
Judge Thomas held that the landlord had met its prima facie burden through the above evidence; and that Plaintiff had failed raise a question of material fact by failing to address assertions made by our engineering expert regarding the lack of HUD violations as to the subject step; and failing to rebut our showing that the step’s epoxy patch was open and obvious and not inherently dangerous.
Judge Thomas’s decision also cites to one of the cases relied upon in Clark & Fox’s motion papers, Masker v. Smith, 188 A.D.3d 867, 135 N.Y.S.3d 135 (2d Dept. 2020), in which the Appellate Division, Second Department, affirmed summary judgment for the defendant landlord where the condition of the pie-shaped “winder” step on which the plaintiff allegedly fell was both open and obvious and not inherently dangerous. In that case, Plaintiff’s own testimony established that he was aware of the existence of the winder step at the time of the accident; that he had used the subject stairway without incident approximately five times before the day of the accident; and that he had ascended the stair without incident just minutes before he fell while descending the stair.
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John M. Clark, CEO/President: jclark@clarkfoxlaw.com
