Flores v 1298 Grand, LLC
Attorneys and Parties
Brief Summary
Premises liability—summary judgment standards; landlord liability where tenant removed a staircase handrail; causation and constructive notice.
Granted the defendant’s motion for summary judgment dismissing the complaint.
The order granting summary judgment to the defendant.
The out-of-possession landlord defense was raised for the first time in reply without affording the plaintiff a surreply; and, on alternate grounds, the defendant failed to make a prima facie showing that plaintiff could not identify the cause of her fall or that it neither created nor had notice of the hazardous condition, particularly given evidence of the missing handrail raising a proximate-cause issue.
Background
Plaintiff was injured while ascending an interior staircase from the basement to the ground floor of premises owned by defendant and leased to plaintiff’s employer. The tenant had removed the existing handrail and installed a conveyor belt without defendant’s knowledge or consent. Plaintiff testified she did not know what caused her to slip but that she wanted to hold onto something and there was nothing to hold onto. She sued for personal injuries; defendant moved for summary judgment.
Lower Court Decision
The Supreme Court, Nassau County (Lisa A. Cairo, J.), granted defendant’s summary judgment motion dismissing the complaint, relying on an out-of-possession landlord/no contractual duty argument that defendant first raised in reply papers.
Appellate Division Reversal
Reversed, with costs; defendant’s motion denied. The out-of-possession landlord contention was improperly raised for the first time in reply without giving plaintiff an opportunity to respond in a surreply. Considering the defendant’s alternate grounds for affirmance, defendant failed to establish prima facie that plaintiff could not identify the cause of her fall because her testimony supported a triable issue as to whether the absence of a handrail was a proximate cause. Defendant also failed to show it maintained the staircase in a reasonably safe condition or that it lacked constructive notice of the hazardous condition. Accordingly, summary judgment should have been denied regardless of the sufficiency of plaintiff’s opposition.
Legal Significance
Confirms that a movant cannot secure summary judgment based on arguments first raised in reply absent a surreply opportunity, and that in staircase cases the absence of a handrail can create a triable issue of proximate cause even where the precise mechanics of a fall are uncertain. Reinforces that a property owner must make a prima facie showing that it neither created nor had actual or constructive notice of a defect to obtain summary judgment, and that general assertions of non-involvement are insufficient where record evidence suggests a safety feature (handrail) was missing.
On summary judgment, out-of-possession landlord defenses cannot be introduced for the first time in reply, and the absence of a handrail can itself raise a factual question of proximate cause and notice that defeats summary judgment.