Rodriguez v. Leggett Holdings, LLCRodriguez v. Leggett Holdings, LLC
Although defendants, the owner and manager of the building, established prima facie their entitlement to judgment with evi
The facts here are comparable to those in Babich (supra) where the plaintiff was able to testify only that her foot slipped on the top step of a restaurant stairway, but her expert, on examining the stairs, asserted that a slippery condition had beеn created where the non-slip finish on the nosing was worn off. This Court held that the combination of the plaintiff‘s deposition and the expert‘s affidavit “provided sufficient circumstantial evidence to raise an issue of fact as to whether hеr fall was caused by the allegedly defective condition” (75 AD3d at 440). The same reasoning applies here. Plaintiff explained that he did not look, after he fell, to determine what had caused his fall, because he was in too much pain and he lost consciousness; however, it is enough to avoid summary judgment that he was able to identify the site of his fall, and his expert was subsequently able to identify defective conditions at that spot.
References to alcohol and coсaine in the ambulance report and emergency room records have no place in this analysis of whether defendants are entitled to summary judgment; even assuming that those materials were admissible, at best they amount to evidenсe of a competing cause of plaintiff‘s fall. Nor should our analysis be affected by the observation of the motion court that the photograph of the top step showed only ordinary wear and tear; an expert assеrted that defective conditions existed at the top step on which plaintiff fell, which permits a finding that it was a defective condition—not merely a superficially worn tread—that caused plaintiff‘s fall.
Summary judgment is not warranted based on any perceived deficiency in the expert‘s affidavit. His failure to identify the specific building code provisions that were allegedly violated does not preclude consideration of his submission. The affidavit specified the measurements that he took, the problems he
The dissent cites Kane v Estia Greek Rest. (4 AD3d 189 [2004]) for the proposition that it is speculative to attribute the cause of plaintiff‘s accident to the claimed defective condition. However, in thаt case, the plaintiff was unable to identify the spot at which he slipped. While his expert reported the presence of defective conditions on the restaurant stairs, summary judgment was granted to the restaurant because the рlaintiff “did not remember or know why he fell, if indeed he fell on the staircase itself; he only knew that he was found at the bottom of the staircase” (4 AD3d at 190).
That is not the case here. The question of whether plaintiff‘s fall was caused by any allegedly defective condition present at the spot at which he fell is appropriately left for the trier of fact. Concur—Saxe, Acosta, Freedman and Richter, JJ.
Andrias, J.P., dissents in a memorandum as follows: We all agree that defendants established prima facie their entitlement to judgment by submitting evidence, including plaintiff‘s deposition testimony, demonstrating that plaintiff was unable to identify the cause of his fall (see Scott v Rochdale Vil., Inc., 65 AD3d 621 [2009]; Reed v Piran Realty Corp., 30 AD3d 319 [2006], lv denied 8 NY3d 801 [2007]). The majority believes that plaintiff‘s testimony that he slipped on the top stеp of the stairway, together with an affidavit by his expert engineer stating that there were “code violations at the subject stairway, specifically the top tread of the lower run that cause[d] [p]laintiff to slip and fall,” is sufficient to raise an issue of fact. On the record before us, I disagree. Therefore, I dissent and would affirm the order granting defendants’ motion for summary judgment dismissing the complaint.
According to his bill of particulars, on October 7, 2007, at approximately 2:00 A.M., plaintiff slipрed “on the top step before the intermediate landing of the stairs between the first and second floors” of the five-story walk-up building owned and managed by defendants. Although plaintiff alleged that he fell due to “the dangerous and defective condition existing at the
At his examination before trial, plaintiff testified that he had lived in apartment 2-F for about two years, that he had been the building superintendent until he was fired, and that he used the staircase regularly. He had never had an accident on the staircase before and had not heard of anyone else having one.
The accident occurred when plаintiff was returning home from his girlfriend‘s apartment, but he could not remember anything about it. Plaintiff could not recall the date or time it occurred, the weather or lighting conditions, or whether he had consumed any alcohol in the three hours beforе he slipped. When told that the emergency room records indicated that he had tested positive for cocaine, plaintiff replied that no one had ever told him that he used drugs.
Plaintiff could not recall whether he steppеd onto the first step before he fell, or how many steps beneath the second floor he was when the accident occurred. He stated, “I fell in between the two staircases . . . [o]r in the middle.” Nevertheless, he marked the alleged location of his fall on a photograph, “[i]ndicating,” counsel stated, “the top of the staircase or the junction of the landing and the top stair,” and testified that he slipped when he put his left foot there.
Plaintiff also testified that he wаs looking straight ahead, towards the window on the landing, when he slipped. He did not remember if any light or cold air was coming through the window or if he saw anything on the ground before he fell. Plaintiff said that “the staircase was bad,” but he could not describe whаt caused him to fall and did not look to see what it was after he fell.
Where a plaintiff identifies a defect “based on his recognition of the approximate location where he fell—not his recognition of the defect itself,” that “basis for identification of the defect amounts to the type of ‘rank speculation’ that generally warrants summary judgment dismissal” (Siegel v City of New York, 86 AD3d 452, 455 [2011] [internal quotation marks omitted]). “Even if an expert alludes to potential defects on a stairway, the plaintiff still must еstablish that the slip and fall was connected to the supposed defect, absent which summary judgment is appropriate” (Kane v Estia Greek Rest., 4 AD3d 189, 190 [2004]).
The report of plaintiff‘s expert is patently deficient. While the expert contends that the stairway betweеn the first and second
Under these circumstances, plaintiff‘s submissions do not suffice to satisfy his burden of proof in opposition to defendants’ prima facie showing (see Deutsch v City of New York, 69 AD3d 523, 523 [2010] [“Plaintiff testified that he does not know why he fell, and the expert‘s opinion that plaintiff fell because of dangerously uneven riser heights is speculative in the absence of evidence tending to show the existence of the alleged uneven risers at the time plaintiff fell“]; Batista v New York City Tr. Auth., 66 AD3d 433, 434 [2009] [“The assertion of plaintiff‘s expert that there were defects in the staircase on which plaintiff fell is insufficient to raise an issue of fact as to proximate cause, because there is no evidence connecting plaintiff‘s fall to those defects“]; see also Noel v Starrett City, Inc., 89 AD3d 906, 907 [2011] [“Although the plaintiffs submitted an affidavit from an engineer who claimed that the staircase violated certain provisions of the
The majority finds it insignificant that plaintiff‘s expert did
“Nor does evidence of worn treads [or tile] imply a dаngerous condition, especially in the absence of testimony causally connecting the worn treads to the accident” (Pena v Women‘s Outreach Network, Inc., 35 AD3d 104, 111 [2006], citing Kane v Estia Greek Rest., 4 AD3d 189, 190 [2004], supra). Indeed, the motion court observed that the photograph of the top marble step showed nothing more than ordinary wear and tear, which does not render it a dangerous and defective condition (see Tryon v Chalmers, 205 App Div 816 [1923], appeal dismissed 240 NY 580 [1925]).