Summary
In Sims v. 3349 Hull Ave. Realty Co. LLC, 106 A.D.3d 466 (1st Dept 2013), the plaintiff simply described the condition as worn and in DeMartini v. Trump 767 5th Ave., LLC, 41 A.D.3d 181 (1st Dept 2007), the plaintiff only described the condition at issue as "inherently slippery".
Summary of this case from McKnight v. N.Y.C. Transit Auth.Opinion
2013-05-9
Bruce SIMS, Plaintiff–Appellant, v. 3349 HULL AVENUE REALTY CO. LLC, Defendant–Respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Carol R. Finocchio, New York, and The Chartwell Law Offices, LLP, New York (William H. Grae of counsel), for respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant. Carol R. Finocchio, New York, and The Chartwell Law Offices, LLP, New York (William H. Grae of counsel), for respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered April 10, 2012, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established its entitlement to judgment as a matter of law in this action where plaintiff was injured when he slipped and fell on a worn marble tread as be descended the stairs in defendant's building. The worn marble tread is not an actionable defective condition ( see Murphy v. Conner, 84 N.Y.2d 969, 971–972, 622 N.Y.S.2d 494, 646 N.E.2d 796 [1994];Cintron v. New York City Tr. Auth., 77 A.D.3d 410, 411, 908 N.Y.S.2d 190 [1st Dept. 2010];Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 111, 824 N.Y.S.2d 3 [1st Dept. 2006] ), and other than stating that he slipped, plaintiff was unable to explain the cause of his fall, and expressly said that he did not slip on any dirt or debris that may have been present ( see Reed v. Piran Realty Corp., 30 A.D.3d 319, 818 N.Y.S.2d 58 [1st Dept. 2006],lv. denied8 N.Y.3d 801, 828 N.Y.S.2d 292, 861 N.E.2d 108 [2007] ).
In opposition, plaintiff failed to raise a triable issue of fact. That defendant's superintendent was aware that the marble step was worn is irrelevant where the alleged defective condition is not actionable ( see DeMartini v. Trump 767 5th Ave., LLC, 41 A.D.3d 181, 837 N.Y.S.2d 137 [1st Dept. 2007] ). Moreover, the opinion of plaintiff's expert that the steps were worn and could cause one to slip is speculative ( see Murphy v. New York City Tr. Auth., 73 A.D.3d 1143, 902 N.Y.S.2d 144 [2nd Dept. 2010] ), and plaintiff cited no applicable Building Code violations connecting plaintiff's injuries to any alleged defective condition ( see Garcia–Rosales v. 370 Seventh Ave. Assoc., LLC, 88 A.D.3d 464, 930 N.Y.S.2d 183 [1st Dept. 2011];compare Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 906 N.Y.S.2d 528 [1st Dept. 2010] ).