COYLE v. 3343 3345 LLC (2024)

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered September 11, 2023, which granted defendant 3343–3354 Decatur Ave, LLC's (Decatur) motion for summary judgment dismissing the complaint as against it, and denied plaintiff's cross-motion to amend the complaint as moot, unanimously affirmed, without costs.

Plaintiff, a police officer, was responding to a 911 call at Decatur's building, when defendant Antonio Dos–Santos pushed him down a staircase.  Decatur established prima facie that it was not liable for the injuries plaintiff sustained by showing that the claimed defect was not actionable (see Savio v. Rose Flower Chinese Rest., Inc., 103 A.D.3d 575, 959 N.Y.S.2d 694 [1st Dept. 2013]).  Plaintiff testified that, when Dos–Santos shoved him, he lost his footing on the “slippery” and “old and marbly” stairs, so he was unable to prevent his fall.  Plaintiff did not recall encountering any loose or unstable stairs, nor did he notice any debris or liquid on the stairs at any time.  The inherent slipperiness of marble or stone, standing alone, does not constitute an actionable defect (see Wong v. 15 Monroe Realty Inc., 194 A.D.3d 534, 534, 149 N.Y.S.3d 20 [1st Dept. 2021];  Sims v. 3349 Hull Ave. Realty Co. LLC, 106 A.D.3d 466, 467, 965 N.Y.S.2d 869 [1st Dept. 2013]).

In opposition, plaintiff failed to raise a triable issue of fact.  Plaintiff's proffered expert affidavit is speculative, as he did not “personally inspect the step at issue but merely examined undated, unauthenticated photographs of it” (Wong, 194 A.D.3d at 534, 149 N.Y.S.3d 20;  see Garcia–Rosales v. 370 Seventh Ave. Assoc., LLC, 88 A.D.3d 464, 465, 930 N.Y.S.2d 183 [1st Dept. 2011]).  Plaintiff's expert's conclusory assertions regarding the relevant safety standards were not supported with references to specific, applicable industry standards or practices (see Griffith v. ETH NEP, L.P., 140 A.D.3d 451, 452, 33 N.Y.S.3d 238 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209191 [2016]).  On the other hand, Decatur's expert personally inspected the staircase, employed a slip meter to measure the static coefficient of friction at the accident location, and concluded that the stairs provided a safe, nonslip walking surface under standards promulgated by various engineering and safety organizations (see Viselli v. Riverbay Corp., 155 A.D.3d 439, 440, 63 N.Y.S.3d 240 [1st Dept. 2017], affd as mod 32 N.Y.3d 980, 84 N.Y.S.3d 853, 109 N.E.3d 1153 [2018]).

Moreover, regardless of the merit of plaintiff's assertion that Decatur improperly maintained the staircase, Dos–Santos's spontaneous and unforeseeable criminal conduct constituted a supervening act, relieving Decatur of liability (see Ramos v. New York City Bd. of Educ., 107 A.D.3d 583, 583, 967 N.Y.S.2d 718 [1st Dept. 2013];  see also Wall v. Starbucks Corp., 211 A.D.3d 767, 769, 179 N.Y.S.3d 739 [2d Dept. 2022], lv denied 39 N.Y.3d 912, 2023 WL 3102001 [2023]).  Plaintiff undisputedly testified that he fell backwards down the stairs because Dos Santos grabbed plaintiff and pulled him in, then put his foot on the wall, kicked off the wall and forcefully pushed him down the stairs.  Plaintiff's suggestion that he might have been able to regain his footing if the stairs had been less slippery is speculative.

For the same reasons, the proposed claims under General Municipal Law § 205–e are untenable as a matter of law.