Goldenberg v. Huhnsik Chung

Goldenberg v Huhnsik Chung 2026 NY Slip Op 31003(U) March 17, 2026 Supreme Court, Kings County Docket Number: Index No. 525326/2021 Judge: Richard Velasquez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.5253262021.KINGS.001.LBLX036_TO.html[03/24/2026 3:45:47 PM] FILED: KINGS COUNTY CLERK 03/17/2026 02:18 PM INDEX NO. 525326/2021 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 03/17/2026

At an IAS Term, Part 66 of the Supreme Court of the State·ofNew York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 17TH day of MARCH, 2026 PRESENT: HON. RICHARD VELASQUEZ Justice; ------------------'- -----X JOYCE GOLDENBERG, M.D., Plaintiff, Index No;: 525326/2021 -against- Decision and Order Mot. Seq. No. 2, 3, 4 HUHNSIKCHUNG KEITH THEODORE, JR. d/b/a THEODORE .FLOORS, THE BOARD OF MANAGERS OF THE GOTHAM CONDOMINIUM, and FIRST SERVICE RESIDENTIAL NEW YORK, INC., Defendants, ----~---,-...-.---------.------· X The following papers NYSCEF Doc #'s 35 to 99 read on this motion: Papers NYSCEFDOC NO. 's Notice of Motion/Order to Show Cause Affidavits (Affirmations)Annexed _ _ _ _ _ _ _ _ _ 35~54; 57-64; 66-77 Opposing Affidavits (Affirmations) 78-81; 82-84; 85-87; 88; 89 Reply Affidavits 90; 95; 96;97; 98; 99 After having come before the Court and the court having heard Oral Argument on January 29, 2025, and after reviewing the foregoing papers the court finds as follows: THE BOARD OF MANAGERS OF THE GOTHAM CONDOMINIUM, and FIRSTSER\IICE RESiDENTIAL NEWYORk INC. sih/a FIRST SERVICE RESIDENTIAL NEW YORK, INC. move this court for a:n order grantlng summary judgment and dismissing all claims and crossclaims pursuant to CPLR. 3212. Contending Summary judgment is appropriate as a matter of law because plaintiff,·. the owner of the Page 1 of 7

(MS#3).

Defendant, KEITH THEODORE, JR. d/b/a THEODORE FLOORS, also moves this court for an order granting surnmary judgment and dismissing all claims and crossclaims . .

pursuant to CPLR 3212. Contending there was no water on the floor Wilen Work concluded that day, and that plaintiff refused to allow defendantback into apartment to complete the work; (MS#4), FACTS The instant action arises from an alleged slip and faU on June 30, 2021. Plaintiff allegedly slipped arid fell a.rt the wet flooring inside her own .condo unit at 170. East 87th Street, Apt. SEW, New York, N~Y. on June 30 1 2021 .. It is alleged a water .leak <;>riginated from the dishwasher in the condo uhit above, Which leaked into the plaintiff$ .unit and Page .2. of 7

The plaintiff alleges that a leak occurred in her apartment that stemmed from a dishwasher in the unit immediately above her; owned by the defendant HUHNSIK CHUNG 011 May 5, 2021. As a result of damage to the floor of the plaintiff's hallway described above, .she. hired defendant Theodore Floors to make· repairs. Plaintiff alleges the repairs were still undeiway when she slipped and fell in the hallway in her condo.

Plaintiff alleges the water she fell on occurred as a result of the leak occurring almost two months earlier on May 5, 2021.

Defendant HUH NSI K CHUNG alleges that on or about May 5, 2021 , a leak was discovered from the dishwasher in the Chung apartment. The leak was discovered when employees of the building came to the Chung unit and took the toe kick off the bottom of the dishwasher while it was running. On that date, May 5, 2021 the dishwasher and its water supply were shut off in their entirety until a new dishwasher was installed approximately six months later. During the six months the water remained shut off and the broken dishwasher was never used.

Thereafter, Plaintiff retained "Theodore Floors" to perform the floor repair work, and the contractorbegan "demolishing the floors." NYSCEF DOC NO. 43, p. 24;;28., 107.

A copy of the relevant invoice was marked as exhibit "A" at plaintiffs deposition, See NYSCEF DOC NO. 44"; and S~e NYSCEF DOG NO. 43, p, 110. It is alleged in plaintiff deposition transcript utwo levels of wood were removed II and 1'pushed off to the side 6fthe hallway," and "the entire Width of the. hallway was remqvedl' which re$1..1lted in 11exposed concrete." See NYSCEF DOC NO. 43, p. 29,, 30, 31. ltis alleged by the plaintiff that water continued to accumulate in this are!3, and her contractor fold herthat "it had to dry Page 3 of 7

Plaintiff asked her contractor how she was to go in-and-out of her master bedroom, and her contractor told her "to be careful." See NYSCEF bOC NO. 43, p. 33-34. 13,; On the evening of the accident, plaintiff testified she. observed ''puddles" of water on the exposed concrete in front of her bedroom,and there had been water there "for a couple of days.'' SeeNYSCEF DOC NO. 43, p. 38, 39, 42. Plaintiff alsoalleges said water "originated from the apartment above." See NYSCEF DOC NO. 43, p. 123. Therefore, it seems to be plc1intiff'sposition that thewater she allegedly fell on, on June 30, 2021, is the same water that came from the leak on May 5, 2021.

Defendant, KEITH THEODORE, JR. d/b/a THEODORE FLOORS, alleges when his work concluded for that day there was no water on the floor in the hallway and said hallway was completely dry. Defendant also alleges when he returned to continue the third day of work and was informed plaintiff fell; he questioned how she could have fell because he observed there was no moisture on the floor. Plaintiff then refused to allow detendanttc, continue the work, Defendant also alleges and plaintiffadmits that defendant was not hired to dry the- floors defendant .KEITH THEODORE, JR. d/b/a THEODORE FLdORs was hired to replace flooring not dry floors ANALYSIS It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of lawi offering ~ufficientevidence to demonstrate the .absence of any material. issue of fact Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 (1985). Once there is a prim a facie showing, the burdeh. shifts to the party opposing the motic,h for summary judgment to produce evidentiary proof ih admissible form to est~blish material· issues of fc:1ct, which require a trial of the action. Zuckerman v~ Page 4 of 7

City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986).

However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency ofthe opposing party's papers.

The proponent of a motion for summary judgment carries the initial burden of . production of evidence as well as the burden of persuasion. The moving party must tender sufficient evidence to show the a.bsence of any material issue of fact and the right to judgment as a matter of law; Zuckerman v. City of New· York, .49 NY2d 557 (Ct of Appeals, 1990). A motion for summaryJudgment will be granted ;'if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrantthe courtas a matter of law in directing the jtidgment in favor of any party". CPLR 3212 (b).

The "motion shall be denied if any party shall show facts sufficientto require a trial of any issue of fact" Id. Sumrnary judgment is proper when there are no issues of triat>le fact (Alvarez v Prospect Hospital; 68 NY2d :320, 324 [1986].) Issue finding rather than issue . .

determination is its function (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957].)

A motion for summary Judgment is a drastic measure and to be used sparingly (Wanger \I. Zeh, 45 Misc2d 93 [Sup Ct, Albany Cpunty], affd 26 AD2d 729 [3rd Dept 1965]). When deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the plaintiff, as the nonmoving party, and afford him the benefit of every favorable inference. Moreover, a motion for summary judgement Should not be granted where the fact$ arE!I fn dispute,. where conflicting inferences may be drawn from the evidence, or where there are issues of credibility,,. Leblanc v. Skinner; 103 AD3d 202, 211 .. 1.2 (2 Dept. 2012), THE'. BOARD OF MANAGERS OF THE GOTHAM CONDOMINIUM, and Pages of 7

FIRSTSERVICE RESIDENTIAL NEWYQRK INC. $/h/a FIRST SERVICE RESIDENTIAL NEW YORK, INC., motionfor summary judgement is hereby granted. Pursuant to the By- laws, the plaintiff is required to maintain and repairthe interior Qf her apartment unit. See Articie 6.9 titled "Maintenance and Repairs". Additionally; THE CONDO and FIRSTSERVICE did not have notice of nor did they create the allegedly dangerous condition of the water-damaged, buckled floor tiles, nor· did they perform any work that allegedly caused the leak and consequent water damage or the allegedly ·negligent floor repairs. See Machado v Clinton Haus. Dev. Co.; Inc., 20 AD3d 307 [tst Dept 2005]; NussbEJum v 150 W End Ave. Owners Corp., 76 AD3d 914 [1st Dept 2010]. As such their motion must be granted.· Defendant HUH NSI K CHUNG motion for summary judg_ment dismissing all claims and crossclaims pursuant to CPLR 32t2js hereby granted (MS#3); there are no issues of fact. There was no notice of the defect, it was a latent defect. Sufficient evidence has been proffered to establish Defendant HUHNSIK did not cause or create the alleged condition as his water was shut off well before this accident occurred. Additionally, the water in his apartment was. shut off for 6 months total and fr days short of two months before the alleged incident occurred. "To impose liability upon a d.efendant in a trip and fall action, there musfbe evidence that a dangerous or defective condition existeo, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within. a reasonable time. Mullen .v. Helen Keller Servs. For the Blind, 135 AD3d 837 (2d Dept 2016); See also (Dennehy--Afurphy 1,( Nor-Topia Seiv. ·Ctr.

Inc., 61 AD3d 62 ,629 [2009]: ..see Spindellv. Town of Hempste1:Jr,i, 92 AD3d 6.6.9[2012]; McMahon v. Gold, 18 AD 3d 908 1 · 909 [201 Ol II Setmos v. Gtuppuso, 95 AD 3d 985 (2d Dept. 2012).

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Defendant, KEITH THEODORE, JR. d/b/a THEODORE FLOORS, motion for summary judgment is hereby denied there are issues of fact. In the present case, there are conflicting stories regarding whether the condition even existed, (i.e. whether there was water on the floor).lncluding but not limited to whether the condition existed, whether alleged condition was open and obvious, as well as whether the parties acted reasonably in the situation, all raise issues of factand credibility. Credibility is best left for a ju'ry.

Credibility is solely for the jury (Sorokin v: Food Fair Stores, 51 AD2d 592, 593, 378 NYS2d 492, 49$; Pertofsky v. Drucks; 16 AD2d 690, 227 NYS2d 50B;E/Jis V; Hoelzel; 57 AD2d 968, 968, 394 NYS2d 91, 93 (1977). As such Defendant, KEITH THEODORE, JR. d/b/a THEODORE FLOORS, motion for summary judgment must be denied.

Accordingly; THE BOARD OF MANAGERS OF THE GOTHAM CONDOMINIUM, and FIRSTSERVICE RESIDENTIAL NEW YORK INC. s/h/a FIRST SERVICE RESIDENTIAL NEW YORK, INC,, motion for summary judgement is hereby granted (MS#2), for the above stated reasons. Defendant HUHNSI K CHUNG motion for sµmmary judgment dismissing all claims and crossclaims pursuant to CPLR3212 is hereby granted (MS#:3), for the above stated reasons. Defendant, KEITH THEODORE, JR. d/b/a THEODORE FLOORS, motion for summary judgment is hereby denied (MS#4), fpr the above stated reasons.

This constitutes the Decision/Order of the court Dated: Brooklyn, New York Mq1rch 17, 2026

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