Opinion
2011-11-10
Harbhajan SINGH, formerly known as Bhajan Rakkar, Plaintiff–Appellant,v.ACTORS EQUITY HOLDING CORPORATION, et al., Defendants–Respondents.
Law Offices of Neil Kalra, P.C., Forest Hills (Neil Kalra of counsel), for appellant.Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Mark Alan Taustine of counsel), for respondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 23, 2010, which, in this action for personal injuries sustained when plaintiff allegedly tripped on a bent piece of metal nosing and fell down a flight of stairs in a building owned and managed by defendants, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff's argument that summary judgment should not have been granted because defendants failed to include signed, sworn copies of the deposition transcripts, is raised for the first time on appeal and thus, is precluded from review ( Ta–Chotani v. Doubleclick, Inc., 276 A.D.2d 313, 714 N.Y.S.2d 34 [2000] ). Were we to consider the argument, we would find that the signed, sworn documents were in defendants' possession and could have been provided to the motion court had defendants been notified of the omission. Moreover, the deposition transcripts are admissible *342 as plaintiff's own admission since the transcripts had been certified as accurate by the court reporter ( Morchik v. Trinity School, 257 A.D.2d 534, 536, 684 N.Y.S.2d 534 [1999] ).
Dismissal of the complaint was proper since there are no triable issues as to whether defendants created or had notice of any purported defect to the subject stair. Plaintiff did not see the alleged defect and there had been no complaints of it. Plaintiff's affidavit submitted in opposition to the motion fails to raise a triable issue of fact as it was not consistent with his deposition testimony ( see Telfeyan v. City of New York, 40 A.D.3d 372, 373, 836 N.Y.S.2d 71 [2007] ). Furthermore, plaintiff's expert affidavit fails to raise an issue as to whether defendants had constructive notice of the defect since the expert's observations occurred almost two and a half years after the accident ( see e.g. Glover v. New York City Tr. Auth., 60 A.D.3d 587, 588, 876 N.Y.S.2d 40 [2009] ).
TOM, J.P., ANDRIAS, ACOSTA, FREEDMAN, RICHTER, JJ., concur.