Zaldivar v. St. Rita's R.C. Church , 4 N.Y.S.3d 64 ( 2015 )

Zaldivar v St. Rita's R.C. Church (2015 NY Slip Op 01270)

Zaldivar v St. Rita's R.C. Church

2015 NY Slip Op 01270

Decided on February 11, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 11, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
MARK C. DILLON
ROBERT J. MILLER
HECTOR D. LASALLE, JJ.

2013-05659
(Index No. 31561/09)

[*1]Luz Zaldivar, appellant,

v

St. Rita's Roman Catholic Church, respondent.

Peña & Kahn, PLLC, Bronx, N.Y. (Raafat S. Toss of counsel), for appellant.

Murphy Higgins & Schiavetta PLLC, New Rochelle, N.Y. (Daniel M. Schiavetta, Jr., of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Partnow, J.), dated February 14, 2013, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly ascended two steps to reach the platform of an altar in the defendant's church to take a group photograph after a special mass. As the plaintiff attempted to descend the altar, she allegedly fell from the platform area to the floor, and sustained personal injuries. The plaintiff thereafter commenced this action against the defendant. The defendant moved for summary judgment, contending that the plaintiff did not know what had caused her to fall and that the altar and the steps leading up to the altar were not in a hazardous condition. The Supreme Court granted the motion.

In support of the motion, the defendant submitted evidence, including the transcript of the plaintiff's deposition testimony and photographs of the accident site, which was sufficient to establish, prima facie, that the plaintiff was unable to identify what had caused her to fall (see Deputron v A & J Tours, Inc., 106 AD3d 944; Dennis v Lakhani, 102 AD3d 651), and that the altar and the steps leading up to the altar were not in a hazardous condition (see Vazquez v Gun Hill Assocs., LLC, 122 AD3d 723, 723-724; Feldman v Merrick Union Free Sch. Dist., 122 AD3d 667, 668; Balashanskaya v Polymed Community Care Ctr., P.C., 122 AD3d 558, 559). In opposition, the plaintiff failed to raise a triable issue of fact.

In light of our determination, we need not address the parties' remaining contentions.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

SKELOS, J.P., DILLON, MILLER and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court