Opinion
2012-10-25
Mary E. GIBBS, Plaintiff–Appellant, v. 3220 NETHERLAND OWNERS CORP., Defendant–Respondent.
Sim & Record LLP, Bayside (Sang J. Sim of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Sim & Record LLP, Bayside (Sang J. Sim of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
GONZALEZ, P.J., MOSKOWITZ, ACOSTA, FREEDMAN, ABDUS–SALAAM, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered March 8, 2012, which granted landlord-defendant's motion for summary judgment, and denied plaintiff's cross motion for leave to amend her bill of particulars, unanimously affirmed, without costs.
The court correctly held that the stairs on which plaintiff allegedly slipped and fell (leading from the first floor to the lobby) were not “exit” stairs within the meaning of either paragraph 6.4.1.7.1(g) of section C26–292.0 of the 1938 Building Code (Administrative Code of City of N.Y. § C26–292.0), or the Building Code section which plaintiff had relied on previously, section 27–375 of the 1968 Building Code (Administrative Code of City of N.Y. § 27–375) ( see Remes v. 513 W. 26th Realty, LLC, 73 A.D.3d 665, 666, 903 N.Y.S.2d 8 [1st Dept. 2010];Union Bank & Trust Co. Of Los Angeles v. Hattie Carnegie, Inc., 1 A.D.2d 199, 199–200, 149 N.Y.S.2d 122 [1st Dept. 1956];see also Cusumano v. City of New York, 15 N.Y.3d 319, 324, 910 N.Y.S.2d 410, 937 N.E.2d 74 [2010] ). Accordingly, the court correctly determined that plaintiff's expert's opinion, that the stairs violated the Building Code's requirements applicable to “exit” stairs, failed to raise an issue of fact.
Similarly, plaintiff's expert's opinion regarding the allegedly slippery condition created by the absence of slip resistant material and/or use of high gloss enamel paint was lacking in probative value because he did not identify any minimum requirement of non-skid material, nor that using such paint deviated from such standard ( see Cietek v. Bountiful Bread of Stuyvesant Plaza, Inc., 74 A.D.3d 1628, 1629, 903 N.Y.S.2d 213 [3d Dept. 2010];Sanders v. Morris Hgts. Mews Assoc., 69 A.D.3d 432, 432–433, 892 N.Y.S.2d 99 [1st Dept. 2010];Jenkins v. New York City Hous. Auth., 11 A.D.3d 358, 360, 784 N.Y.S.2d 32 [1st Dept. 2004] ).
Plaintiff's current argument on appeal that the water might have come from a source other than the weather conditions is wholly speculative and insufficient to defeat defendant's showing that it had no actual or constructive knowledge of any wet or slippery condition in the subject stairwell ( see Fallon v. Duffy, 95 A.D.3d 1416, 1417, 943 N.Y.S.2d 289 [3d Dept. 2012] ).
The court correctly denied plaintiff's cross motion for leave to amend her bill of particulars, as the proposed amendment failed to state a cause of action ( see Megaris Furs v. Gimbel Bros., 172 A.D.2d 209, 568 N.Y.S.2d 581 [1st Dept. 1991] ).