[*1]
Taveras v Quisqueya II Hous. Co., LP
2014 NY Slip Op 50744(U) [43 Misc 3d 1222(A)]
Decided on May 8, 2014
Supreme Court, Queens County
Livote, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 8, 2014
Supreme Court, Queens County


Jess Taveras,, Plaintiff,

against

Quisqueya II Housing Company, LP AND TMA Contracting Corp., Defendants.




23379/11

Leonard Livote, J.



On October 19, 2008, at 3:20 a.m., Plaintiff Jess Taveras returned to his apartment at 2240 Amsterdam Avenue after an evening of drinking in Brooklyn. Upon returning, Taveras realized that he had locked himself out. In an attempt to gain access to his fifth floor apartment, Taveras accessed the fire escape by climbing the retracted ladder. Taveras made it to the landing of the second floor fire escape, at which point he was observed by police officers, who directed Taveras to return to the ground. Instead of lowering the ladder to descend, Taveras climbed onto the retracted ladder. Taveras alleges that, at this point, the ladder slid to the ground with Taveras on it, causing him injury. A subsequent inspection by an engineer retained by defendant TMA Contracting Corp., failed to reveal any defect in the ladder mechanism.

Discussion


Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept 2005]). "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547 [2d Dept 1995]). "In the context of a motion for summary judgment, the court is obliged to draw all reasonable inferences [*2]in favor of the non-moving party, and may not pass on issues of credibility" (Rizzo v Lincoln Diner Corp., 215 AD2d 546 [2d Dept 2005]).

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of a triable issue of fact (CPLR Section 3212(b); Alvarez v Prospect Hosp., 68 NY2d 320 [1986] Zuckerman v City of New York, 49 NY2d 557 [1980] Megafu v. Tower Ins. Co. of New York, 73 AD3d 713 [2d Dept 2010]).However, once the moving party has satisfied this obligation, the burden then shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, supra).

Issues of credibility cannot be determined on a motion for summary judgment. (S.J. Capelin Associates, Inc. V. Globe Manufacturing Corporation, 34 NY2d 338 [1974]).

Misirlakis v East Coast Entertainment Props. (297 AD2d 312 [2d Dept 2002]), had facts similar to the instant case. In Misirlakis, the plaintiff, after locking himself out of a building, injured himself when a rung on the fire escape ladder collapsed as he tried to climb it. The Court held that the plaintiff's complaint, which included negligence claims, should be dismissed as his "unnecessary and unforeseeable act of climbing onto the dumpster and ascending the fire escape was the sole and superseding proximate cause of his injuries" (Misirlakis at 313).

On the other hand, in Kellman v. 45 Tiemann Associates, Inc. (87 NY2d 871 [1975]), the plaintiff was injured when, while standing on the fire escape to clean her windows, she fell through the stairwell of the fire escape. The Court of Appeals held that there were issues of fact at to "(1) whether it was foreseeable that tenants would use the fire escape landings to clean windows or for other purposes, and, if so, (2) whether defendant landlord exercised reasonable care to protect tenants from injuring themselves by falling through the unguarded hatchways in fire escape landings" (id. at 871-72).

As an initial matter, the facts in the instant case are much closer to Misirlakis than Kellman. In fact, the plaintiff's conduct in the instant case is more egregious than that in Misirlakis. Although it is foreseeable that some one might ascend a fire escape to access a locked apartment, it was not foreseeable that plaintiff would attempt to descend the ladder while it was in its raised position. Had plaintiff lowered the ladder and used it in its intended configuration, the accident could not have happened. Thus, as in Misirlakis, Tavares' conduct was the "sole and superseding proximate cause of his injuries." Accordingly, the motion and cross-motion are granted and the complaint is dismissed.

This constitutes the Order of the Court. [*3]

Dated:May 8, 2014.............................

Leonard Livote, A.J.S.C.