Opinion
8237 Index 22827/14
01-29-2019
Yocelyn REYES, Plaintiff–Appellant, v. 83 POST AVENUE ASSOCIATES, L.L.C., Defendant–Respondent.
Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for appellant. Dillon Horowitz & Goldstein LLP, New York (Thomas Dillon of counsel), for respondent.
Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for appellant.
Dillon Horowitz & Goldstein LLP, New York (Thomas Dillon of counsel), for respondent.
Renwick, J.P., Richter, Mazzarelli, Webber, Kern, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered October 19, 2016, which granted defendant's motion for summary judgment dismissing the complaint in this slip and fall personal injury action, unanimously affirmed, without costs. Defendant established its entitlement to a judgment as a matter of law, where plaintiff was injured when she slipped and fell on a marble step while descending a staircase in defendant's building. Initially, a worn marble step, without more, is not an actionable defect (see Savio v. Rose Flower Chinese Rest., Inc., 103 A.D.3d 575, 959 N.Y.S.2d 694 [1st Dept. 2013] ; Sims v. 3349 Hull Ave. Realty Co. LLC, 106 A.D.3d 466, 965 N.Y.S.2d 869 [1st Dept. 2013] ; Cintron v. New York City Tr. Auth., 77 A.D.3d 410, 410, 908 N.Y.S.2d 190 [1st Dept. 2010] ). Thus, regardless of whether defendant had notice of the allegedly slippery nature of the surface, defendant has established its prima facie entitlement to summary judgment (see Sims at 467, 965 N.Y.S.2d 869 ; DeMartini v. Trump 767 5th Ave., LLC, 41 A.D.3d 181, 837 N.Y.S.2d 137 [1st Dept. 2007] ).
In any event, even if the alleged slipperiness of the surface were an actionable defect, defendant established that it did not create the allegedly hazardous condition and did not have notice of it (see Richards v. Kahn's Realty Corp., 114 A.D.3d 475, 979 N.Y.S.2d 595 [1st Dept. 2014] ). In addition to plaintiff's own testimony that she did not make any complaints about the stairs in question prior to the date of the accident, defendant's witness testified that he was unaware of any complaints, repairs made to the staircase, prior accidents on the staircase, or any building code violations issued to the defendant.
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's testimony about the lighting of the stairwell was not sufficient to create an issue of fact, since plaintiff simply testified that she slipped, not that she could not see the stairs ( Richards at 475, 979 N.Y.S.2d 595 ). Nor does plaintiff's expert affidavit raise a triable issue of fact, since the expert's opinion concerning the cause of plaintiff's slip was speculative (see Sarmiento v. C & E Assoc., 40 A.D.3d 524, 526–527, 837 N.Y.S.2d 57 [1st Dept. 2007] ), and did not contain sufficient evidence that the building inquestion was subject to the cited provisions of the New York City Administrative Code (see Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744–745, 787 N.Y.S.2d 215, 820 N.E.2d 859 [2004] ; 71st St. Lexington Corp. v. Waitman, 140 A.D.3d 670, 33 N.Y.S.3d 729 [1st Dept. 2016] ).
We have considered plaintiff's remaining arguments and find them unavailing.