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New York Appellate Court Says Plaintiff Failed to Prove Reason for Fall, Summary Judgment Denied


The plaintiff in this particular case is Avital Yarmush. The defendants of the case are Temco Service Industries, Inc., St. Peter’s Lutheran Church of Manhattan, Citigroup Center Condominium, Boston Properties Limited Partnership, and BP/CG Center I and BP/CG Center II, LLC. This case is being heard in the Supreme Court of the State of New York located in the County of New York. The Honorable Saliann Scarpulla is overseeing the case.

This case involves the issue of negligence on the part of the defendants. The plaintiff has issued the negligence action after he fell down the steps at a property that was owned, operated, managed, and maintained, by each of the defendants. The defendants have moved for the errata sheet related to the deposition testimony of the plaintiff to be struck. The defendants have also moved for a summary judgment in their favor to dismiss the complaint.

Case Background

The plaintiff worked at the building in question. On the 22nd of August, the plaintiff was going down the stairs that led to the entrance of the subway at the corner of Lexington Avenue and 53rd Street. The stairs are divided by a railing and she was on the left of the right handrail. The plaintiff states that she was holding onto the handrail while she was going down the stairs. The handrail is adjacent to a waterfall.

On the day of the accident, Kevin Buell, a security supervisor employed by the defendant Boston called the plaintiff and obtained her statement. This statement was the basis for the incident report that was filed. According to Buell, Yarmush stated that she slipped on the stairs because they were wet. He states that he believes she stated that the wetness may have been caused by the rain. The incident report filed by Buell states that it was raining at the time of the accident. In addition, Yarmush told Buell that the stairs were dangerous and in need of repair.

In the bill of particulars the plaintiff alleges that the accident occurred because of the negligence of the defendants. She states that the steps were not well maintained, were defective, dangerous, and created a hazardous condition. She also states that the by allowing the steps to have cracks, not inspecting the steps regularly, and making sure the treads had proper depths, the defendants are negligent. The plaintiff gives the reason for her fall as the steps being slippery and that there was a crack in the third step up from the bottom that caused her to trip.

Case Discussion and Decision

In any case that involves a request for summary judgment, the moving party must establish prima facie to they are entitled to this relief.

In this particular case the plaintiff has failed to clearly state the reason for her fall. At first she seemed to think that it was because the stairs were wet at the time of her fall. She later states that the fall was caused by the crack in the step. These discrepancies in her story are in favor of the defendant.

As the plaintiff cannot name the exact reason for her fall and therefore cannot prove that the defendants were at fault, the court finds in favor of the defendant. The complaint that has been made against the defendants is dismissed.

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