JAMES v. 2630 LLC (2024)

Order, Supreme Court, Bronx County (Andrew J. Cohen, J.), entered March 25, 2024, which, to the extent appealed from, denied defendant Marion 2630 LLC's 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 dismissing the complaint.

Marion demonstrated prima facie that the worn marble tread depicted in the photographs taken by plaintiff is not an actionable defect (see DeCarbo v. Omonia Realty Corp., 181 A.D.3d 438, 120 N.Y.S.3d 315 [1st Dept. 2020];  Reyes v. 83 Post Ave. Assoc., L.L.C., 168 A.D.3d 607, 607, 91 N.Y.S.3d 426 [1st Dept. 2019], lv denied 33 N.Y.3d 905, 2019 WL 2049834 [2019]).  Plaintiff and Marion's superintendent testified that the photographs taken by plaintiff accurately reflected the condition of the stair on the day of the accident, and there is no claim that the stair was wet, slippery, or covered with debris.  Moreover, Marion's expert opined that the accident could not have occurred as plaintiff described because when she fell, her left foot was in the middle of the tread rather than on the right-hand side where the worn condition she cited was located.

Marion also demonstrated that it did not have actual or constructive notice of a defective condition on the stair in that the superintendent testified that there were no complaints and no violations had been issued with respect to the stair.  He stated that he swept the stairs five days and mopped three days a week, and that the photographs accurately depicted the condition of the stair on the day of the accident.  Plaintiff's complaints to the prior superintendent about the general condition of the stairs was insufficient to constitute notice of the specific condition cited by plaintiff as the cause of her fall (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795 [1994]).

In opposition, plaintiff failed to raise a triable issue of fact as to Marion's negligence.  The opinion of her expert cited numerous dangerous conditions on the stairs and in the stairway, but plaintiff did not cite any of them as a proximate cause of her accident (see Reyes, 168 A.D.3d at 607–608, 91 N.Y.S.3d 426).