Preview
FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
...___________----_____------______________.-------------------X
IRIS COHEN, as Executor of the Estate of Index No.: 032033/2020 E
SID COHEN, Deceased,
Plaintiff, NOTICE OF ENTRY
-against-
JACA ENTERTAINMENT CORP and
ABNA I REALTY LLC,
Defendant.
...-_______-----_________________________________----..--X
PLEASE TAKE NOTICE, that the within is a true copy of a Decision and Order of the
Honorable Rolf M. Thorsen, duly entered in the office of the clerk of the within named court on
March 8, 2022.
Dated: March 8, 2022
New York, New York
IAN C. DAITER, PLLC
By
Ian C , E
Atto ndant
95
270 Madison Avenue, Floor
New York, New York 10016
212-537-9341
To: Burke, Conway & Steifeld
Attorney for Defendants
10 Bank Street - Suite 1200
White Plains, New York 10606
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FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/08/2022
SUPREME COURT: STATE OF NEW YORK
COUNTY OF ROCKLAND
------------------------------------X To commence the time period
statutory
for appeals as of right (CPLR
IRIS COHEN, as Executor of the Estate
o th order it no i o
of SID COHEN, Deceased, entry, upon all parties.
Plaintiff, DECISION & ORDER
-against-
Index No: 032033/2020 E
JACA ENTERTAINMENT CORP and
ABNA I REALTY LLC,
Defendants.
-----------------___________________
HON. ROLF M. THORSEN, A.J.S.C.
This action for personal injuries arises out of an incident
that took place on October 19, 2019 .Sid Cohen, the
whereby
tripped and fell while Defendants' movie.
decedent, exiting theater.
Plaintiff alleges that various conditions of the egress caused the !
decedent to fall including, but not limited to the improper
landing, uneven and defective risers, lack of handrails and
inadequate lighting. Defendant moves pursuant to CPLR 3212 for an
Order granting summary judgment. This Court has considered the
following papers on the motion:
1. Notice of Motion (#003), Statement of Material
Facts and Affirmation in Support and Exhibits A
through G submitted therewith;
2. Plaintiff's Statement of Material Facts and Affirmation
in Opposition with Exhibits A. through F submitted
therewith; and
3. Defendant's Reply Affirmation.
It is well-settled that "whether a dangerous or defective
condition exists on the property so as to give rise to liability
depends on the peculiar facts and circumstances·of each case and is
jury."
generally a question of fact for the Jaklitsch v. Kelly, 176
A.D.3d 792, 792-793 (2d Dept. 2019) (Internal quotations/citations
omitted). In addition, a defendant who moves for summary judgment
in a trip-and-fall case ·has the initial burden of making a prima
. facie showing that it neither created the hazardous condition nor
had actual or constructive notice of its existence for a sufficient
length of time to discover and remedy it. Davis v. Sutton, 136
A.D.3d 731, 732-733 (2d Dept. 2016) (Internal citations omitted).
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FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/08/2022
Here, based on the deposition testimony, expert affidavit and
photographs/video submitted by Defendant, the Court finds that the
Defendant failed to establish its prima facie entitlement to
judgment as a matter of law.1St , e.a., Ramirez v. Saka, 76 A.D.3d
673 (2d Dept. 2010); see also, Sotomayor v. Pafos Realty, LLC, 43
A.D.3d 905, 906 (2d Dept. 2007).
Notwithstanding the above, were the Court to consider the
papers submitted in opposition, Plaintiff has raised triable issues
of fact. Here, the parties submitted two conflicting expert
experts"
affidavits creating a credibility "battle of the which
falls within the province of the trier of fact. Thus, summary
judgment is not warranted. SE.g, e.a., Poliziani v. Culinary Inst.
of Am.,. 167 A.D.3d 790, 791 (2d Dept. 2018).
Based on the foregoing, it is hereby
ORDERED that Defendant's motion for summary judgment is
. denied; and it is further
ORDÈRED that a pre-trial conference shall be held via
Microsoft Teams on March 31, 2022 at 10:00 a.m.
The constitutes the Decision and Order of this
foregoing
Court.
. E N R
Dated: March 7 , 2022
New City, New York
HO . LF M. THORSEN
Acting Supreme Court Justice
TO: NYSCEF
affidavits," the Court
Although the Court has referred to the "expert
witnesses' qualifications.
has not made any legal conclusions as to the
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FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022
AFFIRMATION OF SERVICE
lan C. Daiter, an attomey duly licensed to practice law before the Courts of
this State, hereby affirms the following to be true under penalties of perjury:
I am not a party to the action, am over 18 years of age and reside in New
York, New York.
On, March 8, 2022, I served the within Decision & Order with Notice of Entry
[X]Service by depositing a true copy of same enclosed in a post paid properly
by mail addressed wrapper, by First Class Mail in an official depository under the
exclusive care and custody of the United States post office department within
the State of NY addressed to each of the following persons at the last known
address set forth after each name:
To: Burke, Conway & Steifeld
Attomey for Defendant
10 Bank Street - Suite 1200
White Plains, New York 10606
Dated: New York, New York
March 8, 2022
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FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
-- - -------------------------------- - -X Index No.: 032033/2020
IRIS COHEN, as Executor of the Estate of
SID COHEN, Deceased,
Plaintiffs
-against-
JACA ENTERTAINMENT CORP, and ABNA I
REALTY LLC,
Defendants.
------------------------- ---------- - -X
DECISION AND ORDER WITH NOTICE OF ENTRY
IAN C. DAITER, PLLC
Attorney forPlaintsf(s)
Ofce and Post Ofice Address, Telephone
MADISON 95 Floor
270 AVENUE,
NEW YORK, NEW YORK 10016
(212)537-9341
Our FileNo.: 1142
To
Attorney(s) for
Service ofa copy of thewithin is herebyadmitted
Dated,
___..____________________________--
Attorney(s) for
Please takenotice
Notice of Settlement
Dated,
Yours,etc.
IAN C. DAITER, PLLC
Attorneyfor Plaintif(s)
Ofice and Post Ofice Address
To 270 MADISON 95
AVENUE, Floor
Attorney(s)for NEW YORK, NEW YORK 10016
5 of 5
Preview
FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ...___________----_____------______________.-------------------X IRIS COHEN, as Executor of the Estate of Index No.: 032033/2020 E SID COHEN, Deceased, Plaintiff, NOTICE OF ENTRY -against- JACA ENTERTAINMENT CORP and ABNA I REALTY LLC, Defendant. ...-_______-----_________________________________----..--X PLEASE TAKE NOTICE, that the within is a true copy of a Decision and Order of the Honorable Rolf M. Thorsen, duly entered in the office of the clerk of the within named court on March 8, 2022. Dated: March 8, 2022 New York, New York IAN C. DAITER, PLLC By Ian C , E Atto ndant 95 270 Madison Avenue, Floor New York, New York 10016 212-537-9341 To: Burke, Conway & Steifeld Attorney for Defendants 10 Bank Street - Suite 1200 White Plains, New York 10606 1 of 5 FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/08/2022 SUPREME COURT: STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------X To commence the time period statutory for appeals as of right (CPLR IRIS COHEN, as Executor of the Estate o th order it no i o of SID COHEN, Deceased, entry, upon all parties. Plaintiff, DECISION & ORDER -against- Index No: 032033/2020 E JACA ENTERTAINMENT CORP and ABNA I REALTY LLC, Defendants. -----------------___________________ HON. ROLF M. THORSEN, A.J.S.C. This action for personal injuries arises out of an incident that took place on October 19, 2019 .Sid Cohen, the whereby tripped and fell while Defendants' movie. decedent, exiting theater. Plaintiff alleges that various conditions of the egress caused the ! decedent to fall including, but not limited to the improper landing, uneven and defective risers, lack of handrails and inadequate lighting. Defendant moves pursuant to CPLR 3212 for an Order granting summary judgment. This Court has considered the following papers on the motion: 1. Notice of Motion (#003), Statement of Material Facts and Affirmation in Support and Exhibits A through G submitted therewith; 2. Plaintiff's Statement of Material Facts and Affirmation in Opposition with Exhibits A. through F submitted therewith; and 3. Defendant's Reply Affirmation. It is well-settled that "whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the peculiar facts and circumstances·of each case and is jury." generally a question of fact for the Jaklitsch v. Kelly, 176 A.D.3d 792, 792-793 (2d Dept. 2019) (Internal quotations/citations omitted). In addition, a defendant who moves for summary judgment in a trip-and-fall case ·has the initial burden of making a prima . facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. Davis v. Sutton, 136 A.D.3d 731, 732-733 (2d Dept. 2016) (Internal citations omitted). Page -1- 1 of 2 2 of 5 FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 03/08/2022 Here, based on the deposition testimony, expert affidavit and photographs/video submitted by Defendant, the Court finds that the Defendant failed to establish its prima facie entitlement to judgment as a matter of law.1St , e.a., Ramirez v. Saka, 76 A.D.3d 673 (2d Dept. 2010); see also, Sotomayor v. Pafos Realty, LLC, 43 A.D.3d 905, 906 (2d Dept. 2007). Notwithstanding the above, were the Court to consider the papers submitted in opposition, Plaintiff has raised triable issues of fact. Here, the parties submitted two conflicting expert experts" affidavits creating a credibility "battle of the which falls within the province of the trier of fact. Thus, summary judgment is not warranted. SE.g, e.a., Poliziani v. Culinary Inst. of Am.,. 167 A.D.3d 790, 791 (2d Dept. 2018). Based on the foregoing, it is hereby ORDERED that Defendant's motion for summary judgment is . denied; and it is further ORDÈRED that a pre-trial conference shall be held via Microsoft Teams on March 31, 2022 at 10:00 a.m. The constitutes the Decision and Order of this foregoing Court. . E N R Dated: March 7 , 2022 New City, New York HO . LF M. THORSEN Acting Supreme Court Justice TO: NYSCEF affidavits," the Court Although the Court has referred to the "expert witnesses' qualifications. has not made any legal conclusions as to the Page -2- 2 of 2 3 of 5 FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022 AFFIRMATION OF SERVICE lan C. Daiter, an attomey duly licensed to practice law before the Courts of this State, hereby affirms the following to be true under penalties of perjury: I am not a party to the action, am over 18 years of age and reside in New York, New York. On, March 8, 2022, I served the within Decision & Order with Notice of Entry [X]Service by depositing a true copy of same enclosed in a post paid properly by mail addressed wrapper, by First Class Mail in an official depository under the exclusive care and custody of the United States post office department within the State of NY addressed to each of the following persons at the last known address set forth after each name: To: Burke, Conway & Steifeld Attomey for Defendant 10 Bank Street - Suite 1200 White Plains, New York 10606 Dated: New York, New York March 8, 2022 4 of 5 FILED: ROCKLAND COUNTY CLERK 03/08/2022 04:09 PM INDEX NO. 032033/2020 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -- - -------------------------------- - -X Index No.: 032033/2020 IRIS COHEN, as Executor of the Estate of SID COHEN, Deceased, Plaintiffs -against- JACA ENTERTAINMENT CORP, and ABNA I REALTY LLC, Defendants. ------------------------- ---------- - -X DECISION AND ORDER WITH NOTICE OF ENTRY IAN C. DAITER, PLLC Attorney forPlaintsf(s) Ofce and Post Ofice Address, Telephone MADISON 95 Floor 270 AVENUE, NEW YORK, NEW YORK 10016 (212)537-9341 Our FileNo.: 1142 To Attorney(s) for Service ofa copy of thewithin is herebyadmitted Dated, ___..____________________________-- Attorney(s) for Please takenotice Notice of Settlement Dated, Yours,etc. IAN C. DAITER, PLLC Attorneyfor Plaintif(s) Ofice and Post Ofice Address To 270 MADISON 95 AVENUE, Floor Attorney(s)for NEW YORK, NEW YORK 10016 5 of 5