Decisions of Interest
Forrester v. Riverbay Corporation
Supreme Court, Bronx County, Index No. 300166/13
Plaintiff Edwina Forrester brought this action against defendant Riverbay Corporation, claiming she was injured when she tripped over an elevated section of the wood floor in the living room of her apartment, owned and managed by Riverbay. Plaintiff alleged that defendant had actual and constructive notice of the alleged defective condition prior to plaintiff’s incident and was therefore negligent in its duties.
Representing Riverbay, Malapero & Prisco LLP made a motion for summary judgment dismissing the complaint against defendant, which was granted by the Court in an order dated July 31, 2014. Malapero & Prisco argued in its motion that plaintiff’s deposition testimony failed to definitively identify a defect as the cause of her falling. Furthermore, defendant argued that, with reference to photos of the alleged defect, plaintiff failed to show that an “actionable defect” was the cause of her incident in that there was no observable “defect” or “raised” or “elevated” section of the tiling.
In its decision, the Supreme Court granted Malapero & Prisco’s motion, asserting that plaintiff failed to identify a raised edge that would have caused her fall. She instead testified in her deposition that the fur from her slippers got caught in the floor board, causing her to trip, a claim not actionable as a matter of law. Plaintiff subsequently appealed this decision.
In an order entered on January 7, 2016, the Supreme Court, Appellate Division, First Department upheld the lower court’s order, affirming that in plaintiff’s opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact.