The following papers were read on the defendant's motion for summary judgment
dismissing the claim: Notice of Motion, Affirmation in Support and Exhibits
annexed, Memorandum of Law; Affirmation in Opposition and Exhibit annexed; Reply
The claim alleges that the claimant was injured while showering in a dormitory
at the State University at Stony Brook, when a soap dish broke, apparently
cutting his hand.
Defendant moves for summary judgment dismissing the claim on the ground that
the condition of the soap dish was open, obvious and readily observable, and
that the defendant had no notice of any allegedly defective condition.
The defendant's motion is based upon the deposition testimony of the claimant
and of Frederick E. Tokash, Director of Residential Operations at State
University at Stony Brook. In particular, it is asserted by counsel for the
defendant that "despite the existence of many similar soap dishes at the campus,
there is no evidence of any soap dishes breaking or complaints concerning the
soap dishes on campus." Affirmation, Paragraph 13. In the defendant's
Memorandum of Law it is likewise asserted that "there is no evidence of any
previous incidents concerning similar soap dishes in other areas of the State
University's campus. The examination before trial testimony of the witness on
behalf of the State University is that there are at least 200 similar soap
dishes throughout the State University's campus * * * . Yet there are neither
records of any of those soap dishes breaking nor any complaints concerning the
soap dishes on campus." Memorandum of Law, third unnumbered page.
These assertions appear to be specifically contradicted by the deposition
testimony of Mr. Tokash (Examination taken April 29, 1999, annexed as Exhibit D
to defendant's submission). On page 42 of his examination, he was asked: "To
your knowledge, had any of the soap dishes . . . ever break apart or fall apart
. . . ?" His response was: "Yes, sir." He further testified that he was aware
of approximately ten such incidents. (Page 43).
Regardless of whether or not the claimant will be able to meet his burden at
trial, in view of the foregoing, on this record the defendant has not met its
burden on the instant motion. Alvarez v Prospect Hospital, 68 NY2d 320,
"Summary judgment is a drastic remedy which ‘deprives the litigant of his
day in court * * * [and therefore] should only be employed when there is no
doubt as to the absence of triable issues.' [Andre v Pomeroy, 35 NY2d
361, 363; Phillips v Kantor & Co., 31 NY2d 307, 311.]" Martin v
Briggs, 235 AD2d 192, 196.
Accordingly, the defendant's motion for summary judgment is denied.
The Court has not considered the claimant's request for "summary judgment
against the Defendants, because of their spoliation of crucial evidence," which
is unsupported. CPLR 3212(b).