Motion for Writ in Ellyn Dorfman v. Hinde Gross, Mayer Gross| Trellis.Law

On October 18, 2022 a Motion-Secondary was filed involving a dispute between Ellyn Dorfman, and Hinde Gross, Mayer Gross, for Torts - Other (Premises) in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 03/21/2024 03:20 PM INDEX NO. 614138/2022
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/21/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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ELLYN DORFMAN,
Index No.: 614138/2022
Plaintiff,

-against-

HINDE GROSS and MAYER GROSS,

Defendants.
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____________________________________________________________________________

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
____________________________________________________________________________

LERNER, ARNOLD & WINSTON, LLP
286 Fifth Avenue, 12th Floor
New York, New York 10001
(212) 686-4655
smcaloon@lawpartnersllp.com
Attorneys for Plaintiff, Ellyn Dorfman

Brief respectfully submitted by:
Charles M. Arnold
Sean F. McAloon

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PRELIMINARY STATEMENT

The Plaintiff Ellyn Dorfman (“Plaintiff” or “Dorfman”) respectfully submits this

Memorandum of Law in Opposition to Defendants’ Hinde Gross and Mayer Gross’ (collectively

“Defendants”) Motion for Summary Judgment. Based upon the arguments contained herein,

Plaintiff’s Response to Defendant’s Statement of Undisputed Facts and Counter-Statement of

Facts, the Affirmation and report of Carl E. Peters, P.E., and all the pleadings and proceedings

herein, it is respectfully submitted that Defendants’ motion for summary judgment should be

denied in its entirety.

This is an action for personal injuries sustained to Plaintiff, Ellyn Dorfman, on September

27, 2021, while she was a guest in Defendants’ home located at 2265 Halyard Drive, Merrick,

New York. Defendants invited Plaintiff and her husband to their home for dinner. After dinner,

Defendant Hilde Gross invited Plaintiff to come upstairs to her bedroom to look at a dress. To get

to the bedroom, Plaintiff had to ascend two steps from the main level of the home to reach the

landing of the middle level of the home, then, to ascend approximately eight more steps to reach

the bedroom level. Because Defendants were observing a Jewish holiday, there were no lights

turned on in the middle level or bedroom level of the home. Only the first level of the home had

lights turned on.

Before Plaintiff could ascend the stairs to the middle level, Mrs. Gross required her to

remove her shoes, because Mrs. Gross did not want to dirty the thick carpet which covered the

stairs and middle level of the home. After Plaintiff removed her shoes, her feet were covered by

nylon stockings. Plaintiff complained about the lack of light to Mrs. Gross as they ascended the

stairs and Mrs. Gross replied “Don’t worry; I’ll lead you across.”

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Plaintiff was able to make it up the stairs to the bedroom without incident. However, after

approximately 15 minutes upstairs, as she went to walk down the two steps from the middle level

to the first level, she attempted to grasp the handrail to her right, but she could not due to the

inadequate and defective nature of the design of the handrail, which did not extend all the way to

the landing of the middle level. As such, when Plaintiff bent down to grasp the handrail, in dim

light, as she was standing on the carpeted surface of the middle level landing, her weight shifted

forward, and her stockinged feet slipped on the carpet, causing her to fall to the first level floor

below. As a result, Plaintiff sustained serious personal injuries in that she broke her wrist, which

remains deformed. See Def’s Aff. in Support at Exhibit D (Plaintiff’s EBT Transcript) at 131:6-

16, 145:15-19. Further, Plaintiff is no longer able to be the primary caretaker for her husband who

suffers from Alzheimer’s disease. Id at 145:22 – 146:5.

As will be explained in detail below, Defendants are not entitled to summary judgment,

because they have failed to meet their burden to demonstrate the absence of material issues of fact.

Plaintiff contends that there are issues of fact concerning: (i) whether the stairs and the handrail

constitute a dangerous or defective condition; (ii) whether Defendants were on notice of the

defective condition; (iii) whether the handrail violated the New York State Building Code; and

(iv) whether the condition was open and obvious. All of these issues of fact preclude summary

judgment for Defendants and must be determined by a jury. As such, Defendants’ motion must

be denied. Further, Defendants’ motion should be denied as procedurally defective because it

violates Section 202.8(c) of the Uniform Rules of the New York State Trial Courts, as Defendants

have not submitted a memorandum of law, and make legal arguments in the attorney affirmation

of Defendant’s counsel.

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SUMMARY JUDGMENT STANDARD

“To obtain summary judgment it is necessary that the movant establish his cause of action

or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor

(CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form.” See

Zuckerman v. City of New York, 46 N.Y.2d 1065, 1067-1068 (1980). “The moving party is entitled

to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact

from the case. Ramoutar v. Diller-Quaile Sch. of Music, Inc., 52 N.Y.S.3d 248, (N.Y. Sup. Ct.

2017) citing Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 (1985);

Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). “Once [the movant’s prima facie]

showing has been made, however, the burden shifts to the party opposing the motion for summary

judgment to produce evidentiary proof in admissible form sufficient to establish the existence of

material issues of fact which require a trial of the action.” Alvarez v Prospect Hosp., 68 N.Y.2d

320, 324 (1986). Summary judgment is a drastic remedy that deprives a litigant of his or her day

in Court. Assaf v Ropog Cab Corp., 153 AD2d 520, 521 (1st Dept. 1989).

“On such a motion, the facts must be viewed in the light most favorable to the plaintiff,

and every available inference must be drawn in the plaintiff’s favor.” De Lourdes Torres v. Jones,

26 N.Y.3d 742, 763 (2016). The evidence submitted in support of the movant must be viewed in

the light most favorable to the non-movant. Airco Alloys Division, Airco Inc. v. Niagara Mohawk

Power Corp., 76 A.D.2d 68, 430 N.Y.S.2d 179 (4th Dept. 1980). If the evidence creates any

reasonable doubt as to whether there is a triable issue of material fact, summary judgment is

inappropriate. Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439, 441 (1968). The

Court's function, when presented with a summary judgment motion, is not to determine credibility

or engage in issue determination, but rather to determine whether there are material issues of fact

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for the Court to determine. Quinn v Krumland, 179 A.D.2d 448, 577 N.Y.S.2d 868 (1st Dept.

1992). Further, where a case presents a credibility battle between the parties’ experts, it for a jury

to determine which expert is more credible. See Ain v. Allstate Ins. Co., 181 A.D.3d 875, 878, 122

N.Y.S.3d 340 (2d Dept. 2020). As this Court is aware, “to warrant summary judgment, it must

clearly appear that no material or triable issue of fact is presented.” Wanger v. Zeh, 45 Misc. 2d

93, 256 N.Y.S. 2d 227 (1965).

Summary judgment should rarely be granted in negligence cases. See Hoey v. New York,

187 A.D.2d 386, 590 N.Y.S.2d 434 (1st Dept. 1992)(“[t]he Court of Appeals has consistently stated

that ‘negligence cases by their very nature do not usually lend themselves to summary judgment,

since often, even if all parties are in agreement as to the underlying facts, the very question of

negligence is itself a question for jury determination”) citing Andre v. Pomeroy, 35 N.Y.2d 361

(1974). Summary judgment should only be invoked rarely, because very often there is a question

of whether the defendant has exercised due care under the circumstances and whether the accident

was unavoidable in light of all the surrounding circumstances. See Ortiz v. Knighton, 14 A.D.2d

679, 219 N.Y.S.2d 802 (1st Dept. 1961).

Here, the matter before this Court is not appropriate for summary judgment because issues

of fact abound regarding whether there was a defective condition in Defendants’ home, whether

Defendants were on notice same, and whether the defect was open and obvious. As will be

discussed below, Defendants’ motion for summary judgment must be denied in its entirety.

ARGUMENT

POINT I

AN ISSUE OF FACT EXISTS REGARDING WHETHER
THE STAIRS WERE DANGEROUS OR DEFECTIVE

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“Whether a dangerous or defective condition exists on the property so as to create liability

depends on the particular circumstances of each case and is generally a question of fact for the

jury.” Acevedo v. New York City Tr. Auth., 97 A.D.3d 515, 516, 947 N.Y.S.2d 599 (2d Dept.

2012).

Defendants argue in conclusory fashion that the stairs in their home did not present a

defective condition. Defendant’s expert concluded that “the stairway and upper landing of the

living room level of the home… were properly maintained, safe, code compliant, violated no

enforceable codes, and were not required to be modified in any way.” Pitera Aff. at ¶ 22.

Plaintiff’s expert, Carl E. Peters, P.E., disagrees and has concluded:

In my professional opinion, the deficiencies identified above create a
hazardous condition. An individual wishing to descend the stairs must lean
down and over the leading edge of the stair to grasp the handrail. To do so,
one must place the balls of their feet near the edge of the top nosing. This
causes the person's center of gravity to be near or over the leading edge of
the steps rather than firmly on the upper landing. In this position, more
weight is likely placed upon the right foot with the left foot then being raised
to descend to the next step. Once the left foot moves forward, all of the
person's weight will be placed upon the ball of the right foot now located
toward the edge of the top nosing.

As the handrail at 2265 Halyard Drive terminates before the top of the stairs,
should a person misstep or slip on the top step, they are thus unable to grasp
the handrail to arrest their fall. A handrail in compliance with the
Construction Code runs the full length of the stairs enabling a person to
grasp the railing before beginning to descend the stairs.

Peters Aff., Ex. 1, p. 25.

It is clear that, to descend the stairs at 2265 Halyard Drive from the living
room to the kitchen, Ms. Dorfman needed to bend over and reach down to
grasp the handrail. This movement placed her weight on the ball of her foot
close to the upper edge of the stairs. The thick pile carpet on the nosing
conceals the actual solid edge of the nosing. Ms. Dorfman was in nylon
stockings rather than shoes. It is probable that positioned near the edge of
the steps, and all her weight placed on one foot, her stockings slid on the
carpeted nosing of the top step. As she lost her balance, she was unable to

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reach the handrail to arrest her fall and consequently dropped approximately
two feet to the tile floor below.

Id at p. 26-27.

The crux of Mr. Peters’ conclusion is that the stairs were defective and dangerous because

the handrail did not continue to the top of the stairs leading up to the middle level of the home.

Indeed, the handrail terminates approximately 9 inches before the upper landing. Id at p. 21. Thus,

a person wishing to grasp the handrail when descending the stairs must lean forward from the top

riser, which shifts their weight forward before they have even grasped on to the handrail. As such,

an issue of fact exists regarding whether Defendants created the dangerous and defective condition

presented by the placement of the handrail.

Further, although the carpet may not be inherently dangerous under most circumstances,

Defendant, Hinde Gross, made it dangerous on the night of Plaintiff’s fall by requiring Plaintiff to

remove her shoes and to proceed up and down the carpeted stairs in stockinged feet, which reduced

Plaintiff’s stability. If Plaintiff had been permitted by Mrs. Gross to wear proper footwear, the

accident may have been avoided. As such, a question of fact exists regarding whether Mrs. Gross

created a dangerous condition by requiring Plaintiff to remove her shoes and proceed in her

stockinged feet upon the carpeted floor. See Ramoutar v. Diller-Quaile Sch. Of Music, Inc., 54

Misc.3d 1211, 52 N.Y.S.3d 248 (Sup. Ct. Westchester Co., Jan. 31, 2017)(denying defendant’s

motion for summary judgment and finding plaintiff raised an issue of fact regarding whether

school had policy or practice of requiring guests to remove their shoes and wear socks while

walking in performance room).

Likewise, a question of fact exists regarding whether the lighting was adequate in

Defendants’ home on the night of the accident. See Herring v. Bar 9, Bar Nine and ORA, LLC,

2012 N.Y. Misc. LEXIS 206 *9, 2012 N.Y. Slip Op 30106 (Sup. Ct. N.Y. Co., Jan. 18, 2012)(“…

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as to the negligent lighting claimed by the plaintiff, defendant, as the movant, has the burden to

show that the lights were adequate at the time of the accident”). Although Defendants assert that

the middle level of the home was well-lit by the lights on the first floor of the home, Plaintiff

testified that the middle level was dimly lit, and the bedroom level of the home was pitch black.

See Exhibit G at 51:6 – 52:25. See Herring at *3, *11(finding issue of fact as to whether lighting

was adequate based upon Plaintiff’s deposition testimony that area where he fell was “darker” and

“not in a well lit area.”)

Viewing all of the evidence in a light most favorable to the Plaintiff, as the opponent of the

motion, Plaintiff has sufficiently raised a triable issue of fact regarding whether the stairs were

dangerous or defective. Therefore, Defendants’ motion should be denied.

POINT II

A QUESTION OF FACT EXISTS REGARDING WHETHER
DEFENDANTS WERE ON NOTICE OF THE DEFECTIVE CONDITION

“[O]n this motion for summary judgment filed by defendants, it is defendants' burden to

prove, by the submission of admissible evidence, that they did not in fact have constructive notice

of the alleged defects, by demonstrating that the alleged defects either, did not exist, or did not

exist for a sufficient length of time prior to plaintiff's accident to permit them to discover and

remedy them.” Herring, at *7-8 (emphasis in original). In Herring, a slip and fall case involving

stairs, defendant moved for summary judgment arguing that even if there was a dangerous

condition, there was no evidence they knew of it or received complaints. The Court held “[t]hese

arguments, however, which, in essence point to alleged gaps in plaintiff’s proofs do not satisfy

defendant’s burden of establishing entitlement to judgement of dismissal as a matter of law…

defendants cannot simply point to perceived gaps in Plaintiff’s proofs in order to prevail on a

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motion for summary judgment.” Id at *8-9 citing Bryan v. 250 Church Assoc., 60 A.D.3d 578,

876 N.Y.S.2d 38 (2st Dept. 2009).

Defendants argue that since the stairs did not present a dangerous or defective condition,

they could not have had notice of same. However, Defendants’ argument is belied by Mrs. Gross’

conduct on the night Plaintiff fell. In this regard, Plaintiff testified that she complained to Mrs.

Gross as they ascended the stairs, after Mrs. Gross instructed Plaintiff to remove her shoes, that

Plaintiff could not see due to the lack of light. See Exhibit D at 53:23 – 54:15. Hinde Gross

responded “Don’t worry; I’ll lead you across.” Id at 54:16 -19. Indeed, at one point, while the

two were upstairs in the unlit bedroom level, Mrs. Gross had to lead Plaintiff by holding her hand

through the darkness. Id at 56:6 -23. Despite this, Ms. Gross did not assist Plaintiff in any way as

they descended the stairs. Id at 57:3-20.

Mrs. Gross would not have told Plaintiff “Don’t worry; I’ll lead you across” and literally

taken her by the hand to guide her, if she was not aware of some dangerous or defective condition

on the stairs. At a minimum, Plaintiff has sufficiently raised a triable issue of fact with regard to

Defendants’ notice of the condition, and Defendants’ motion should be denied.

POINT III

A QUESTION OF FACT EXISTS REGARDING WHETHER
THE HANDRAIL VIOLATED THE NEW YORK STATE BUILDING CODE

Defendants argue “there are no Building or Maintenance Code requirements or industry

standards that were violated by Defendants…” However, Plaintiffs’ expert disagrees and has

concluded:

Code Compliance

The stairs between the kitchen and living room of 2265 Halyard Drive do
not comply with:

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• The requirements of the New York State Building Construction
Codes of either 1951 or 1972, because:
o The handrails are not continuous for the full flight of stairs.
o The height of the upper end of the handrail as measured from the
living room floor is less than the minimum height permissible by
code.

Peters Aff., Exhibit 1, p. 25.

Mr. Peters’ report includes a drawing of a handrail that would comply with the

requirements of the building code. Id at Figure 19. He states “In this figure, the handrail extends

the full length of the stairs from kitchen floor to living room floor and the handrail is in a location

where it may be grasped before one starts to descend the stairs. Additionally, it would protect an

individual walking from the front to the rear of the living room from entirely missing the drop

from the living room floor to the front end of the next tread.” Id (emphasis added).

To the extent that Defendants’ expert contends that the handrail does not violate the

building code, this case presents a classic battle of the experts, which it is well-settled should be

resolved by a jury and not the Court on summary judgment. See Barbuto v. Winthrop Univ. Hosp.,

305 A.D.2d 623, 760 N.Y.S.2d 199 (2d Dept. 2003)(“[t]he motion papers presented a credibility

battle between the parties' experts, and issues of credibility are properly left to a jury for its

resolution”); Victory v. Hewlett-Packard Co., 34 F. Supp. 2d 809, 824 (E.D.N.Y.

1999)(“[r]esolution of the battle of experts is a matter best suited for the trier of fact”). As such,

Plaintiff has sufficiently raised an issue of fact regarding whether the stairs and handrail violated

the New York State Building Code.

POINT IV

A QUESTION OF FACT EXISTS REGARDING WHETHER
THE DEFECTIVE CONDITION ON THE STAIRS WAS OPEN AND OBVIOUS

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It is well settled that “[t]he issue of whether a hazard is latent or open and obvious is

generally fact-specific and thus usually a jury question.” Toro v. Friedland Props. Inc., 111

A.D.3d 921, 923, 976 N.Y.S.2d 158 (2d Dept. 2013) quoting Tagle v. Jakob, 97 N.Y.2d 165, 169

(2001). Defendant argues “…the landing and stairs were open and obvious, and readily observable

by those employing the reasonable use of their senses, and not inherently dangerous.” Def’s Aff.

in Support at ¶ 90. Defendant’s conclusory assertions fail to meet its summary judgment burden.

In Hakimisefat v. Krausz, 2017 N.Y. Misc. LEXIS 4403, 2017 Slip Op 32395 (Sup. Ct.

Kings Co., Nov. 17, 2017), plaintiff sued defendant when she slipped and fell on an interior

staircase in defendant’s home. Plaintiff alleged that her fall was caused, in part, by an inadequate

handrail. In denying defendant’s motion for summary judgment, the Court held:

Here, [defendants] have failed to submit evidence establishing their prima
facie entitlement to summary judgment dismissing [plaintiff’s] negligence
claim. The submission of their own deposition testimony regarding their
regular use of the staircase without incident fails to eliminate all triable
issues of fact as to whether the absence of a proper handrail where the first
winder tread of the staircase was located was inherently dangerous (see
DeCarlo v Vacchio, 147 AD3d 724, 725, 45 N.Y.S.3d 581 [2017] [holding
that plaintiff raised triable issue of fact as to whether the absence of
handrails was a breach of defendants" duty to maintain the staircase in a
reasonably safe condition]). [Defendants] have not proven that the allegedly
inadequate handrail was open and obvious and not inherently dangerous to
a visitor such as [plaintiff], who was unfamiliar with the configuration of
the staircase and handrail at the Premises.

Id at *20.

Similar to Hakimisefat, here, Defendants have failed to prove that the inadequate handrail

was an open and obvious defect, which Plaintiff should have been aware of, as a matter of law.

Plaintiff was not familiar with the stairs or the handrail based upon her prior visits to Defendants’

home. In this regard, both Plaintiff and Mrs. Gross testified that Plaintiff had never before been

to the bedroom level of the home, and Plaintiff was, possibly, on the middle level of the home only

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once before. See Exhibit D at 55:5-7; Exhibit G at 17:3 – 18:13. As Plaintiff’s prior visits to the

home were confined to the first level of the home, she was not familiar with the stairs or handrail

at issue.

Further, Plaintiff did not have notice of the inadequate handrail merely because she

ascended the stairs approximately 15 minutes before her accident, which occurred as she

descended the stairs. Upon her ascent, Plaintiff would not have had occasion to attempt to grasp

the handrail from a position on the midlevel of the home, which would have required her to bend

down. Plaintiff was confronted with the inadequate position/length of the handrail for the first

time only upon her descent. As such, a triable issue of fact exists regarding whether the stairs and

handrail were open and obvious. Therefore, Defendants’ motion should be denied.

POINT V

THE COURT SHOULD DISREGARD DEFENSE COUNSEL’S
AFFIRMATION BECAUSE IT IS IN VIOLATION OF THE COURT’S RULES

Section 202.8(c) of the Uniform Rules of the New York State Trial Courts provides in part

that “[a]ffidavits shall be for a statement of the relevant facts, and briefs shall be for a statement

of the relevant law.” 22 N.Y.C.R.R. § 202.8(c); see also Response Personnel, Inc. v.

Aschenbrenner, No. 106509/2008, 2014 WL 3670670 (N.Y. Sup. Ct. July 17, 2014) citing Tripp

& Co. v. Bank of New York (Del), Inc., 28 Misc. 3d 1211(A), 6, 911 N.Y.S.2d 696 (Sup. Ct. 2010))

(“[A]rgument is to be presented in a memorandum of law. The affirmation is neither a replacement

for a memorandum of law nor a place to submit additional argument.”). The affirmation of Amy

L. Pludwin, Esq submitted in support of the instant motion contains legal arguments and citations

to authority. See NYSCEF Doc. No. 21. Since this affirmation violates this Court’s rules, it must

be disregarded in its entirety. Moreover, that affirmation contains statements of counsel’s opinion

and purported facts of which counsel has no personal knowledge. The Court of Appeals has

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previously held that courts should not accord any weight to affirmations from an attorney that has

no personal knowledge of the facts purportedly affirmed. See GTF Mktg., Inc. v. Colonial

Aluminum Sales, Inc., 66 N.Y.2d 965, 968, 489 N.E.2d 755 (1985) quoting Roche v. Hearst Corp.,

53 N.Y.2d 767, 769, 421 N.E.2d 844 (1981)); see also Zuckerman v. City of New York, 49 N.Y.2d

557, 563, 404 N.E.2d 718 (1980). In Zuckerman, the Court of Appeals expressly held that while

an affidavit or affirmation of an attorney, even absent personal knowledge of the facts, may serve

as the vehicle for the submission of acceptable attachments which do provide evidentiary proof in

admissible form such as documents or transcripts, such affidavit is insufficient to support a motion

for summary judgment. See id. To the extent that the affirmation of Amy L. Pludwin, Esq.

purports to make factual assertions about information to which she was a stranger, it is of no

probative value and should be disregarded.

CONCLUSION

WHEREFORE, Plaintiff, Ellyn Dorfman respectfully requests that this Court deny

Defendants’ motion for summary judgment in its entirety, along with such other and further relief as

to this Court deems just and proper.

Dated: New York, New York
March 21, 2024
Respectfully submitted,

LERNER, ARNOLD & WINSTON, LLP
Attorneys for Plaintiff
Ellyn Dorfman

By: /s/ Sean F. McAloon
Sean F. McAloon
286 Fifth Avenue, 12th Floor
New York, New York 10001
cmarnold@lawpartnersllp.com
(212) 686-4655

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CERTIFICATION OF LENGTH OF PAPERS REQUIREMENT

I, Sean F. McAloon, an attorney duly admitted to practice law before the Courts of the

State of New York, hereby certify that this document complies with the word count limit set forth

in section 20.8-b of the Uniform Rules for the Supreme Court and County Court because it contains

fewer words than permitted under section 202.8-b excluding parts of the documents exempted by

section 202.8-b (Word Count: 3868). In preparing this certification, I have relied on the word count

of the word-processing system used to prepare this affirmation.

Dated: New York, New York
March 21, 2024

/s/ Sean F. McAloon
Sean F. McAloon, Esq.

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Document Filed Date

March 21, 2024

Case Filing Date

October 18, 2022

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Motion-Secondary: Ellyn Dorfman v. Hinde Gross, Mayer Gross

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