Opinion
812, 156226/12.
04-12-2016
Naquan CLARKE, et al., Plaintiffs–Appellants, v. VERIZON NEW YORK, INC., etc., Defendant–Respondent, Marymount Manhattan, Co., Defendant.
Jaroslawicz & Jaros, LLC, New York (Norman E. Frowley of counsel), for appellants. Ledy–Gurren, Bass, D'Avanzo & Siff LLP, New York (Joseph A. D'Avanzo of counsel), for respondent.
Jaroslawicz & Jaros, LLC, New York (Norman E. Frowley of counsel), for appellants.
Ledy–Gurren, Bass, D'Avanzo & Siff LLP, New York (Joseph A. D'Avanzo of counsel), for respondent.
TOM, J.P., ANDRIAS, MANZANET–DANIELS, KAPNICK, GESMER, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 9, 2015, which granted the motion of defendant Verizon New York, Inc. (Verizon) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Verizon established entitlement to judgment as a matter of law in this action where plaintiff Naquan Clarke alleges that he was injured when, during the course of a rainstorm, he fell while using a worn and slippery ramp that was used for deliveries at Verizon's building. Verizon submitted testimonial and photographic evidence showing that the claimed defect was not actionable, as “[m]ere wetness on a walking surface due to rain does not constitute a dangerous condition” (Ceron v. Yeshiva Univ., 126 A.D.3d 630, 632, 7 N.Y.S.3d 66 [1st Dept.2015] ). There was also a lack of prior complaints or injuries relating to the ramp (see Savio v. Rose Flower Chinese Rest., Inc., 103 A.D.3d 575, 959 N.Y.S.2d 694 [1st Dept.2013] ). Contrary to plaintiffs' contention, Verizon was not required to submit an expert affidavit under the circumstances presented.
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's expert merely described the surface of the ramp as worn and shiny, concluding that it was dangerously slippery when dry, and even more so when wet. This conclusion, unsupported by any empirical data obtained by scientific analysis, was insufficient to raise an issue of fact (see Ceron, at 632, 7 N.Y.S.3d 66 ; Sims v. 3349 Hull Ave. Realty Co. LLC, 106 A.D.3d 466, 965 N.Y.S.2d 869 [1st Dept.2013] ). Furthermore, the statements allegedly made to plaintiff by the building security guard concerning the slippery nature of the ramp do not qualify under the speaking agent exception to hearsay (see Tyrell v. Wal–Mart Stores, 97 N.Y.2d 650, 737 N.Y.S.2d 43, 762 N.E.2d 921 [2001] ; Gordzica v. New York City Tr. Auth., 103 A.D.3d 598, 960 N.Y.S.2d 103 [1st Dept.2013] ).