Opinion
11904 Index No. 153262/2017 Case No. 2020-00457
10-01-2020
Jadeen MINOR, Plaintiff–Respondent, v. EAST HARLEM TUTORIAL PROGRAM, INC., et al., Defendants–Appellants.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellant. Michael J. Aviles & Associates, LLC, New York (Barbaba Hutter of counsel), for respondents.
Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for appellant.
Michael J. Aviles & Associates, LLC, New York (Barbaba Hutter of counsel), for respondents.
Gische, J.P., Oing, Singh, Mendez, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about September 9, 2019, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The design defect raised in plaintiff's opposition to the motion was a new theory that was not sufficiently pleaded to avoid surprise or prejudice (see Biondi v. Behrman, 149 A.D.3d 562, 563–564, 53 N.Y.S.3d 265 [1st Dept. 2017], lv dismissed in part and denied in part 30 N.Y.3d 1012, 66 N.Y.S.3d 223, 88 N.E.3d 382 [2017] ). Regardless, defendants established prima facie that plaintiff's fall on a staircase in their building was not caused by negligence on their part (see e.g. Burke v. Canyon Rd. Rest., 60 A.D.3d 558, 559, 876 N.Y.S.2d 25 [1st Dept. 2009] ). Video surveillance footage and testimony show that, contrary to plaintiff's allegations, the staircase handrail was stable and in any event did not contribute to her fall. The video does not show that the handrail was loose, wobbly, or shaky. Rather, it shows that, as she descended the stairwell, plaintiff was distracted, missed a step, and lost her balance, and that she was holding onto the handrail the whole time. In opposition, plaintiff failed to raise an issue of fact. Her expert's opinion is speculative and conclusory and therefore without probative value (see e.g. Boatwright v. New York City Tr. Auth., 304 A.D.2d 421, 421, 758 N.Y.S.2d 307 [1st Dept. 2003] ).