Preview
FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015
NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------------X X
ANASTASIA VASILCHUK, Index No.: 514082/2015
Plaintiff,
- against -
177 LUDLOW SM DE, LLC,
Defendant.
-------------------------------------------------------------------X â€â€â€â€â€â€â€â€
MEMORANDUM OF LAW
IN SUPPORT OF DISMISSAL ON BEHALF OF DEFENDANT:
177 LUDLOW SM DE, LLC.
RESPECTFULLY SUBMITTED BY,
MALAPERO & PRISCO LLP
attorneys for the defendant,
177 LUDLOW SM DE, LLC
Office & P.O. Address
17d"
271 Madison Avenue, Floor
New York, New York 10016-1023
P: 212 661-7300 x223
F: 212 661-7640
By:
ANDREW L. KL UBER
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TABLE OF CONTENTS:
Page
PRELIMINARY STATEMENT..............................................................................................p.3
...,, ............,...,.............p.3 .p.3
STATEMENT OF FACTS......................................................................................................p.5 .p.5
,p.5
ISSUES PRESENTED.............................................................................................................p.5 .p.5
ANSWERS...............................................................................................................................p.6 ...................... . .p.6
ARGUMENT............................................................................................................................p.6 .p.6
,p.6
POINT I:
..................................................................................................................................................p.7
CONDITION"
PLAINTIFF'S CLAIMS OF A "DEFECTIVE FAIL TO
ESTABLISH ANY BASIS FOR THE IMPOSITION OF LIABILITY
AGAINST THE DEFENDANT, DEFENDANT:
POINT II:
..................................................................................................................................................p.20 20
PLAINTIFF'S PROOF COMPLETELY LACKS SUPPORT FOR
"NOTICE"
THE ESSENTIAL ELEMENT OF {actual or constructive},
THUS REQUIRING DISMISSAL AS A MATTER OF LAW:
....................................................................................................................................................p.20
"Actual"
(A) There is No Basis for Any Claim of Notice Regarding Any Alleged
Defect:
...................................................................................................................................................p.24
"Constructive"
(B) There is No Basis for Any Claim of Notice Regarding Any
Alleged Defect:
POINT HI:
..................................................................................................................................................p.26
THE RECORD IS DEVOID OF PROOF THAT ANY CONDUCT AND/OR
OMISSION ON THE PART OF DEFENDANT CONSTITUTED A
PROXIMATE CAUSE OF THE PLAINTIFF'S ACCIDENT:
CONCLUSION. .p.29
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PRELIMINARY STATElWENT:
This Memorandum of Law is submitted on behalf of defendant, 177 LUDLOW SM DE,
LLC, in support of the relief which requests an Order of this Court dismissing, and/or granting
Summary Judgment pursuant to CPLR § 3212, as against all the claims and causes of action
brought on behalf of Plaintiff, Anastasia Vasilchuk, in a manner consistent with the legal authority
presented herein.
UNDER THE CONTROLLING LEGAL AUTHORITY IN
THE STATE OF NEW YORK, THIS ACTION SHOULD
NOT BE PERMITTED TO PROCEED AS AGAINST
THE DEFENDANT WHERE:
The Defendant Has Demonstrated The Absence of a "Defective Condition":
The Defendant has submitted an admissible expert affidavit of certified building inspector
and code enforcement official, Gary Beck, in support of the conclusion that the stairway between
the first and second floors of the premises located at 177 Ludlow Street (hereinafter referred to as
the "premises") was in conformity with all recognized good and accepted standards of design,
maintenance and construction; and complied with all applicable codes, rules and regulations.
(See Affidavit of Gary Beck, generally). Thus, there is no legal basis for the claim that the
stairway between the first and second floors of the premises that conformed with all applicable
"danger"
recognized standards at the time of construction somehow constituted a upon which to
base any claim that a breach of duty occurred, much less that the alleged dangerous condition
caused the accident giving rise to this action.
3
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The Defendant Has Demonstrated The Absence of "Notice":
It is uncontested as a matter of law that the Defendant was never made aware of any
violations of the applicable building code, danger, trap, hazard or defect, and that there were never
any prior incidents at the location at issue that would implicate a breach of duty on the part of the
"notice"
defendant. The Defendant has also demonstrated that it was never placed on in any form
(actual and/or constructive) regarding the presence of a defective or dangerous condition on the
stairway between the first and second floors of the premises.
The accident was caused by Plaintiff's own actions, and not anything relating to
Defendant and the subject premises and/or location of the subject occurrence:
In addition to the fact that Plaintiff conceded she did not know whether something on the
stairs caused the accident, Plaintiff's emergency room records demonstrate that Plaintiff had a
blood alcohol level of 348 mg/dL or .34%, one hour after Plaintiff testified she stopped consuming
alcohol on the night of the accident. Defendant has submitted an expert affidavit of a toxicologist
to demonstrate that, regardless of the condition of the premises at the time of the accident, at the
time of the accident, within a reasonable degree of toxicological certainty, Plaintiff was severely
intoxicated. (See Affidavit of John N.D. Wurpel, M.S., Ph.D.). According to Dr. Wurpel, with
a 348 mg/dL blood alcohol level at the time of collection, Plaintiff would have experienced
significant impaired consciousness, impairment of her social, physical and psychomotor skills,
impaired visual tracking, reaction time and planning, and loss of balance. (See Affidavit of John
N.D. Wurpel, M.S., Ph.D.). In fact, according to Dr. Wurpel, Plaintiff's measured blood alcohol
level collected just over one hour after Plaintiff testified she had stopped consuming ethanol was
potentially lethal. Dr. Wurpel finds that regardless of the condition of the stairway where the
accident occurred, the accident was the result of Plaintiff's blood alcohol level.
WHEREFORE, pursuant to the legal principles as set forth in this
Memorandum, and since plaintiff is unable to show any evidence of
4
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"notice" "dangerous"
or any other condition caused by the defendant
sufficient to present a prima facie case for presentation to the jury,
this Court, as a matter of law, should dismiss the Complaint and
causes of action asserted therein in their entirety under CPLR §
3212.
STATEMENT OF FACTS:
{Defendant refers to, and incorporates by reference, the entirety of
the factual record reviewed in greater detail within the annexed
Attorney's Affirmation in support of summary judgment.}
As reviewed in detail within the annexed Attorney Affirmation in support of summary
judgment, defendant has provided a sworn affidavit by expert Certified Building Inspector and
Code Enforcement Official, Gary Beck, demonstrating that the stairway between the first and
second floors of the premises was not dangerous or defective, and conformed with all applicable
"notice"
rules, codes, statutes, ordinances and regulations; as well as the absence of of any defect
on the stairway between the first and second floors of the premises. (See Affidavit of Gary Beck).
In the absence of evidence of a violation of any applicable building code, ordinance or law,
combined with the absence of notice and/or defect, there is no foundation upon which any of the
plaintiff's causes of action may be sustained. Defendant has also annexed the Affidavit of John
N.D. Wurpel, M.S., PhD, Toxocologist, demonstrating lack of proximate cause, as, regardless of
the condition of the stairway where the accident occurred, the accident was the result of Plaintiff's
extremely high and potentially fatal blood alcohol level.
LEGAL ARGUMENT
ISSUES PRESENTED
1. Has plaintiff adduced sufficient proof in admissible form to demonstrate that the condition
"
complained of constitutes a "dangerous and/or hazardous condition of the type for which
Defendant should be found answerable in damages?
"notice"
2. Has plaintiff established the existence of (either actual or constructive) that there
5
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was a dangerous and/or hazardous condition of which the Defendant was, or should have
been, aware as required to sustain any cause of action against the defendant?
ANSWERS:
1. No. Plaintiff has not presented admissible evidence which would indicate that the stairway
between the first and second floors of the premises was defective in any way that would give rise to
liability. According to the plaintiff, she does not know what caused her fall and there is no
non-speculative theory of negligence applicable to the facts to sustain the plaintiffs demand for
damages.
2. Defendant is unaware of any prior complaints, citations or violations to the applicable
building codes relating to the stairway between the first and second floors of the premises which
"actual"
form a basis for any claim of notice. Furthermore, any claim that defendant could have
been aware of a dangerous and/or hazardous condition through alternative means to constitute
constructive notice is purely a matter of speculation and conjecture so that the law of New York
mandates dismissal as a matter of law.
DISCUSSION / ARGUMENT:
DEFENDANT IS ENTITLED OT SUMMARY JUDGMENT
AS THERE ARE NO MATERIAL ISSUES OF FACT
Summary judgment is designed to expedite all civil cases by eliminating those claims from
the trial calendar which can properly be resolved as a matter of law. (Andre v. Pomeroy, 35
N.Y.2d 361 (N.Y. 1974). Summary judgment is warranted where there are no genuine material
issues of fact which need to be resolved at trial. Alvarex v. Prospect Hospital, 68 N.Y.2d 320
(N.Y. 1986). In order to obtain summary judgment, the moving party must proffer "evidentiary
form"
proof in admissible to establish [its] defense sufficiently to warrant the Court as a matter of
law directing judgment in [its] favor. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (N.Y.
1980). Once the moving party has made a prima facia showing of entitlement to judgment as a
matter of law, the papers opposing the motion for summary judgment "must produce evidentiary
6
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proof in admissible form sufficient to establish the existence of material issues of fact which
action."
require a trial of the Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (N.Y. 1980).
The Court may not, on a motion for summary judgment, try an issue of fact. Instead the
Court is called upon solely to determine whether an issue of fact exists. A shadowy semblance of
an issue or bald conclusory assertions, even if believable, are not enough to defeat a motion for
summary judgment. Spodek v. park Property Development Associates, 263 A.D.2d 478
(N.Y.A.D. 2d Dept. 1999); S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., ., 34 N.Y.2d
338 (1974). The Court must ascertain whether a genuine substantial issue of fact exists, or
whether the ostensible issue created is informal, perfunctory, or shadowy. Brown v. Achy, . 9
(1"
A.D.3d 30 Dept. 2004); Hadlick v. Giantommaso, 154 A.D.2d 2d Dept. 1989). Mere
conclusions, expressions of hope, unsubstantiated allegations or assertions are insufficient to
defeat a motion for summary judgment. Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276
(1978).
It is respectfully submitted, based upon the deposition testimony by the parties along with
the sworn affidavits of and Gary Beck (Certified Building Inspector and Code Enforcement
Official) and the Affidavit of Toxocologist, John N.D. Wurpel, M.S., PhD, coupled with the
applicable case law, that 117 LUDLOW SM DE, LLC has established that there are no material
triable issues of fact concerning Defendant's liability for the happening of this accident.
Therefore, summary judgment is appropriate and should be granted in its entirety to all claims
against the 117 LUDLOW SM DE, LLC.
7
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POINT I:
CONDITION"
PLAINTIFF'S CLAIMS OF A "DEFECTIVE FAIL TO
ESTABLISH ANY BASIS FOR THE IMPOSITION OF LIABILITY
AGAINST THE DEFENDANT, DEFENDANT:
Duty Generally
Pursuant to universally-recognized tort principles, a finding of liability on the part of a
defendant requires (1) the existence of either a duty to the plaintiff and/or a defective condition in
an area under the defendant's control; (2) a breach of duty; (3) a causal connection between the
breach of that duty and the resulting damage; and (4) actual loss, harm or damage. Febesh v. Elce
Jay, Inc., 157 A.D. 2d 102; 555 N.Y.S.2d 46 (1st Dep't 1990) citing. Prosser and Keeton on
5th Sec. 30 pp. —
164-165. "Where the plaintiff fails to introduce evidence
T_orts, edition, legally
sufficient to support each and every one of these essential elements, the jury cannot properly find
negligent."
that the defendant has been Akins v. Glens Falls City Dist., 53 N.Y.2d 325, 332, 441
N.Y.S.2d 424 N.E.2d 531 (NY Basso v. Miller, 40 N.Y.2d — 386 N.Y.S.2d
644, 1981); 233, 241-242,
564, 352 N.E.2d 868 (N.Y. 1976); Andrini v. Navarra, 49 A.D.3d 575 (N.Y.A.D. 2d Dept. 2008);
Piacquadio v. Recine Realty Corp., ., 84 NY 2d 967, 959, 646 N.E.2d 795, 622 N.Y.S.2d 493
(1994); Allen v. Pearson Publishing, 256 A.D. 2d 528, 529, 683 N.Y.S.2d 100 (N.Y.A.D. 2d Dept.
1998); Kraemer v. Kmart Corporation, 226 A.D.2d 590, 590, 641 N.Y.S.2d 130 (N.Y.A.D. 2d
Dept. 1996).
It is well settled that the owner of a building has a duty to use reasonable care to keep the
premises in a reasonably safe condition for the protection of all persons whose presence is
reasonably foreseeable. (See Kurshals v. Connetquot Cent. School Distr., 227 A.D.2d 593, 693
N.Y.S.2d 622 (N.Y.A.D. 2d Dept 1996). See also Basso v Miller, 40 N.Y.2d 233, 386 N.Y.S.2d
564, 352 N.E.2d 868; Fellis v Old Oaks Country Club, 163 A.D.2d 509, 558 N.Y.S.2d 183).
8
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Here, the duty owed by the Defendant was that of exercising reasonable ordinary care, including
maintaining the premises in a reasonably safe and suitable condition and in accordance with the
applicable codes, rules, ordinances and laws, and warning individuals of any hidden or concealed
perils known or reasonably discoverable by the Defendant; however, even after the exercise of
reasonable care, some risk may well continue to exist. See Akins v. Glens Falls City School Dist.,
53 N.Y.2d 325 331, 441 N.Y.S.2d 644, 424 N.E.2d 531 (NY 1981). (See also Basso v Miller, 40
"R"
N.Y.2d at 241; Thornhill v Toys US, 183 A.D.2d 1071, 583 N.Y.S.2d 644 (3d Dept. 1992)).
However, there is no duty to warn against a condition which is readily observable or an
extraordinary occurrence, which "would not suggest itself to a reasonably careful and prudent
against."
person as one which should be guarded
Without a defect and the breach of a duty, there is no negligence and liability cannot attach.
See Basso v. Miller, 40 N.Y.2d
Preview
FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X X ANASTASIA VASILCHUK, Index No.: 514082/2015 Plaintiff, - against - 177 LUDLOW SM DE, LLC, Defendant. -------------------------------------------------------------------X â€â€â€â€â€â€â€â€ MEMORANDUM OF LAW IN SUPPORT OF DISMISSAL ON BEHALF OF DEFENDANT: 177 LUDLOW SM DE, LLC. RESPECTFULLY SUBMITTED BY, MALAPERO & PRISCO LLP attorneys for the defendant, 177 LUDLOW SM DE, LLC Office & P.O. Address 17d" 271 Madison Avenue, Floor New York, New York 10016-1023 P: 212 661-7300 x223 F: 212 661-7640 By: ANDREW L. KL UBER 1 of 30 FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 TABLE OF CONTENTS: Page PRELIMINARY STATEMENT..............................................................................................p.3 ...,, ............,...,.............p.3 .p.3 STATEMENT OF FACTS......................................................................................................p.5 .p.5 ,p.5 ISSUES PRESENTED.............................................................................................................p.5 .p.5 ANSWERS...............................................................................................................................p.6 ...................... . .p.6 ARGUMENT............................................................................................................................p.6 .p.6 ,p.6 POINT I: ..................................................................................................................................................p.7 CONDITION" PLAINTIFF'S CLAIMS OF A "DEFECTIVE FAIL TO ESTABLISH ANY BASIS FOR THE IMPOSITION OF LIABILITY AGAINST THE DEFENDANT, DEFENDANT: POINT II: ..................................................................................................................................................p.20 20 PLAINTIFF'S PROOF COMPLETELY LACKS SUPPORT FOR "NOTICE" THE ESSENTIAL ELEMENT OF {actual or constructive}, THUS REQUIRING DISMISSAL AS A MATTER OF LAW: ....................................................................................................................................................p.20 "Actual" (A) There is No Basis for Any Claim of Notice Regarding Any Alleged Defect: ...................................................................................................................................................p.24 "Constructive" (B) There is No Basis for Any Claim of Notice Regarding Any Alleged Defect: POINT HI: ..................................................................................................................................................p.26 THE RECORD IS DEVOID OF PROOF THAT ANY CONDUCT AND/OR OMISSION ON THE PART OF DEFENDANT CONSTITUTED A PROXIMATE CAUSE OF THE PLAINTIFF'S ACCIDENT: CONCLUSION. .p.29 2 of 30 FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 PRELIMINARY STATElWENT: This Memorandum of Law is submitted on behalf of defendant, 177 LUDLOW SM DE, LLC, in support of the relief which requests an Order of this Court dismissing, and/or granting Summary Judgment pursuant to CPLR § 3212, as against all the claims and causes of action brought on behalf of Plaintiff, Anastasia Vasilchuk, in a manner consistent with the legal authority presented herein. UNDER THE CONTROLLING LEGAL AUTHORITY IN THE STATE OF NEW YORK, THIS ACTION SHOULD NOT BE PERMITTED TO PROCEED AS AGAINST THE DEFENDANT WHERE: The Defendant Has Demonstrated The Absence of a "Defective Condition": The Defendant has submitted an admissible expert affidavit of certified building inspector and code enforcement official, Gary Beck, in support of the conclusion that the stairway between the first and second floors of the premises located at 177 Ludlow Street (hereinafter referred to as the "premises") was in conformity with all recognized good and accepted standards of design, maintenance and construction; and complied with all applicable codes, rules and regulations. (See Affidavit of Gary Beck, generally). Thus, there is no legal basis for the claim that the stairway between the first and second floors of the premises that conformed with all applicable "danger" recognized standards at the time of construction somehow constituted a upon which to base any claim that a breach of duty occurred, much less that the alleged dangerous condition caused the accident giving rise to this action. 3 3 of 30 FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 The Defendant Has Demonstrated The Absence of "Notice": It is uncontested as a matter of law that the Defendant was never made aware of any violations of the applicable building code, danger, trap, hazard or defect, and that there were never any prior incidents at the location at issue that would implicate a breach of duty on the part of the "notice" defendant. The Defendant has also demonstrated that it was never placed on in any form (actual and/or constructive) regarding the presence of a defective or dangerous condition on the stairway between the first and second floors of the premises. The accident was caused by Plaintiff's own actions, and not anything relating to Defendant and the subject premises and/or location of the subject occurrence: In addition to the fact that Plaintiff conceded she did not know whether something on the stairs caused the accident, Plaintiff's emergency room records demonstrate that Plaintiff had a blood alcohol level of 348 mg/dL or .34%, one hour after Plaintiff testified she stopped consuming alcohol on the night of the accident. Defendant has submitted an expert affidavit of a toxicologist to demonstrate that, regardless of the condition of the premises at the time of the accident, at the time of the accident, within a reasonable degree of toxicological certainty, Plaintiff was severely intoxicated. (See Affidavit of John N.D. Wurpel, M.S., Ph.D.). According to Dr. Wurpel, with a 348 mg/dL blood alcohol level at the time of collection, Plaintiff would have experienced significant impaired consciousness, impairment of her social, physical and psychomotor skills, impaired visual tracking, reaction time and planning, and loss of balance. (See Affidavit of John N.D. Wurpel, M.S., Ph.D.). In fact, according to Dr. Wurpel, Plaintiff's measured blood alcohol level collected just over one hour after Plaintiff testified she had stopped consuming ethanol was potentially lethal. Dr. Wurpel finds that regardless of the condition of the stairway where the accident occurred, the accident was the result of Plaintiff's blood alcohol level. WHEREFORE, pursuant to the legal principles as set forth in this Memorandum, and since plaintiff is unable to show any evidence of 4 4 of 30 FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 "notice" "dangerous" or any other condition caused by the defendant sufficient to present a prima facie case for presentation to the jury, this Court, as a matter of law, should dismiss the Complaint and causes of action asserted therein in their entirety under CPLR § 3212. STATEMENT OF FACTS: {Defendant refers to, and incorporates by reference, the entirety of the factual record reviewed in greater detail within the annexed Attorney's Affirmation in support of summary judgment.} As reviewed in detail within the annexed Attorney Affirmation in support of summary judgment, defendant has provided a sworn affidavit by expert Certified Building Inspector and Code Enforcement Official, Gary Beck, demonstrating that the stairway between the first and second floors of the premises was not dangerous or defective, and conformed with all applicable "notice" rules, codes, statutes, ordinances and regulations; as well as the absence of of any defect on the stairway between the first and second floors of the premises. (See Affidavit of Gary Beck). In the absence of evidence of a violation of any applicable building code, ordinance or law, combined with the absence of notice and/or defect, there is no foundation upon which any of the plaintiff's causes of action may be sustained. Defendant has also annexed the Affidavit of John N.D. Wurpel, M.S., PhD, Toxocologist, demonstrating lack of proximate cause, as, regardless of the condition of the stairway where the accident occurred, the accident was the result of Plaintiff's extremely high and potentially fatal blood alcohol level. LEGAL ARGUMENT ISSUES PRESENTED 1. Has plaintiff adduced sufficient proof in admissible form to demonstrate that the condition " complained of constitutes a "dangerous and/or hazardous condition of the type for which Defendant should be found answerable in damages? "notice" 2. Has plaintiff established the existence of (either actual or constructive) that there 5 5 of 30 FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 was a dangerous and/or hazardous condition of which the Defendant was, or should have been, aware as required to sustain any cause of action against the defendant? ANSWERS: 1. No. Plaintiff has not presented admissible evidence which would indicate that the stairway between the first and second floors of the premises was defective in any way that would give rise to liability. According to the plaintiff, she does not know what caused her fall and there is no non-speculative theory of negligence applicable to the facts to sustain the plaintiffs demand for damages. 2. Defendant is unaware of any prior complaints, citations or violations to the applicable building codes relating to the stairway between the first and second floors of the premises which "actual" form a basis for any claim of notice. Furthermore, any claim that defendant could have been aware of a dangerous and/or hazardous condition through alternative means to constitute constructive notice is purely a matter of speculation and conjecture so that the law of New York mandates dismissal as a matter of law. DISCUSSION / ARGUMENT: DEFENDANT IS ENTITLED OT SUMMARY JUDGMENT AS THERE ARE NO MATERIAL ISSUES OF FACT Summary judgment is designed to expedite all civil cases by eliminating those claims from the trial calendar which can properly be resolved as a matter of law. (Andre v. Pomeroy, 35 N.Y.2d 361 (N.Y. 1974). Summary judgment is warranted where there are no genuine material issues of fact which need to be resolved at trial. Alvarex v. Prospect Hospital, 68 N.Y.2d 320 (N.Y. 1986). In order to obtain summary judgment, the moving party must proffer "evidentiary form" proof in admissible to establish [its] defense sufficiently to warrant the Court as a matter of law directing judgment in [its] favor. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (N.Y. 1980). Once the moving party has made a prima facia showing of entitlement to judgment as a matter of law, the papers opposing the motion for summary judgment "must produce evidentiary 6 6 of 30 FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 proof in admissible form sufficient to establish the existence of material issues of fact which action." require a trial of the Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (N.Y. 1980). The Court may not, on a motion for summary judgment, try an issue of fact. Instead the Court is called upon solely to determine whether an issue of fact exists. A shadowy semblance of an issue or bald conclusory assertions, even if believable, are not enough to defeat a motion for summary judgment. Spodek v. park Property Development Associates, 263 A.D.2d 478 (N.Y.A.D. 2d Dept. 1999); S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., ., 34 N.Y.2d 338 (1974). The Court must ascertain whether a genuine substantial issue of fact exists, or whether the ostensible issue created is informal, perfunctory, or shadowy. Brown v. Achy, . 9 (1" A.D.3d 30 Dept. 2004); Hadlick v. Giantommaso, 154 A.D.2d 2d Dept. 1989). Mere conclusions, expressions of hope, unsubstantiated allegations or assertions are insufficient to defeat a motion for summary judgment. Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276 (1978). It is respectfully submitted, based upon the deposition testimony by the parties along with the sworn affidavits of and Gary Beck (Certified Building Inspector and Code Enforcement Official) and the Affidavit of Toxocologist, John N.D. Wurpel, M.S., PhD, coupled with the applicable case law, that 117 LUDLOW SM DE, LLC has established that there are no material triable issues of fact concerning Defendant's liability for the happening of this accident. Therefore, summary judgment is appropriate and should be granted in its entirety to all claims against the 117 LUDLOW SM DE, LLC. 7 7 of 30 FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 POINT I: CONDITION" PLAINTIFF'S CLAIMS OF A "DEFECTIVE FAIL TO ESTABLISH ANY BASIS FOR THE IMPOSITION OF LIABILITY AGAINST THE DEFENDANT, DEFENDANT: Duty Generally Pursuant to universally-recognized tort principles, a finding of liability on the part of a defendant requires (1) the existence of either a duty to the plaintiff and/or a defective condition in an area under the defendant's control; (2) a breach of duty; (3) a causal connection between the breach of that duty and the resulting damage; and (4) actual loss, harm or damage. Febesh v. Elce Jay, Inc., 157 A.D. 2d 102; 555 N.Y.S.2d 46 (1st Dep't 1990) citing. Prosser and Keeton on 5th Sec. 30 pp. — 164-165. "Where the plaintiff fails to introduce evidence T_orts, edition, legally sufficient to support each and every one of these essential elements, the jury cannot properly find negligent." that the defendant has been Akins v. Glens Falls City Dist., 53 N.Y.2d 325, 332, 441 N.Y.S.2d 424 N.E.2d 531 (NY Basso v. Miller, 40 N.Y.2d — 386 N.Y.S.2d 644, 1981); 233, 241-242, 564, 352 N.E.2d 868 (N.Y. 1976); Andrini v. Navarra, 49 A.D.3d 575 (N.Y.A.D. 2d Dept. 2008); Piacquadio v. Recine Realty Corp., ., 84 NY 2d 967, 959, 646 N.E.2d 795, 622 N.Y.S.2d 493 (1994); Allen v. Pearson Publishing, 256 A.D. 2d 528, 529, 683 N.Y.S.2d 100 (N.Y.A.D. 2d Dept. 1998); Kraemer v. Kmart Corporation, 226 A.D.2d 590, 590, 641 N.Y.S.2d 130 (N.Y.A.D. 2d Dept. 1996). It is well settled that the owner of a building has a duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. (See Kurshals v. Connetquot Cent. School Distr., 227 A.D.2d 593, 693 N.Y.S.2d 622 (N.Y.A.D. 2d Dept 1996). See also Basso v Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868; Fellis v Old Oaks Country Club, 163 A.D.2d 509, 558 N.Y.S.2d 183). 8 8 of 30 FILED: KINGS COUNTY CLERK 08/02/2018 06:07 PM INDEX NO. 514082/2015 NYSCEF DOC. NO. 121 RECEIVED NYSCEF: 08/02/2018 Here, the duty owed by the Defendant was that of exercising reasonable ordinary care, including maintaining the premises in a reasonably safe and suitable condition and in accordance with the applicable codes, rules, ordinances and laws, and warning individuals of any hidden or concealed perils known or reasonably discoverable by the Defendant; however, even after the exercise of reasonable care, some risk may well continue to exist. See Akins v. Glens Falls City School Dist., 53 N.Y.2d 325 331, 441 N.Y.S.2d 644, 424 N.E.2d 531 (NY 1981). (See also Basso v Miller, 40 "R" N.Y.2d at 241; Thornhill v Toys US, 183 A.D.2d 1071, 583 N.Y.S.2d 644 (3d Dept. 1992)). However, there is no duty to warn against a condition which is readily observable or an extraordinary occurrence, which "would not suggest itself to a reasonably careful and prudent against." person as one which should be guarded Without a defect and the breach of a duty, there is no negligence and liability cannot attach. See Basso v. Miller, 40 N.Y.2d