FF PLLC WINS SUMMARY JUDGMENT DISMISSING PLAINTIFF’S CASE – OPEN AND OBVIOUS CONDITION AND NO DEFECT

On April 20, 2016, Judge Sylvia Ash granted our motion for summary judgment in this action in which plaintiff alleged that she sustained a left distal femur periprosthetic fracture resulting in open reduction and internal fixation with bone grafting under general aneshthesia as a result of what she claimed was an elevated room division, resembling a door saddle, between her living room and dining room.

In support of the motion we argued that  (1) the condition  -- an elevated door saddle/room division is not a defective condition, violation of any applicable code or dangerous; (2) the elevation in Plaintiff’s apartment while she lived there for 10 (ten) years before the accident was readily observable, open and obvious, and did not cause the accident; and (3) Plaintiff’s own failure to observe the condition she knew to be present was the cause of her fall when her walker hit the door saddle and went flying out from under her. We submitted the affidavit of expert Mark Marpet, which included a clear, color photograph of the condition in pristine condition.
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Plaintiff, in opposition to the motion, submitted no expert affidavit although counsel for plaintiff argued that our expert’s reference to Plaintiff’s 3101(d) was sufficient to create an issue of fact based on a “dispute between experts.” In reply and at argument, we argued that mere reference to a position is not the equivalent of evidence and has no weight.
Judge Sylvia Ash agreed with our position in its entirety and granted the motion, dismissing the plaintiff’s case. She was persuaded by the photograph, in particular, that there was no defect and the condition was open and obvious.
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Iacono v. Alboukai, Index No.: 501722/12

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