FEINBERG v. 72ND TENANTS CORPORATION (2025)

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered August 7, 2023, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

This action stems from an accident that occurred on a step between the lobby of a cooperative building and the office entrance of defendant Nancy H. Coles, M.D., who had leased space in the building for approximately 30 years.  Plaintiff, a patient of Dr. Cole's for approximately 15 years, was descending the step after leaving an appointment when she lost her balance and fell.  At her deposition, plaintiff testified that she did not “know how or why” she lost her balance, stated that she had not “tripped or slipped” on anything that caused her fall, and admitted that she had ascended the step an hour earlier without issue.  When shown a photograph of the entrance to Dr. Coles's office, plaintiff did not recognize the location and denied that her accident had occurred on the step it depicted.

Defendants established their prima facie entitlement to summary judgment by demonstrating that plaintiff's deposition testimony negated the element of causation (see Mermelstein v. East Winds Co., 136 A.D.3d 505, 505, 24 N.Y.S.3d 643 [1st Dept. 2016];  Kane v. Estia Greek Rest., 4 A.D.3d 189, 190, 772 N.Y.S.2d 59 [1st Dept. 2004]).  Defendants also submitted a photograph of the step demonstrating that it was neither inherently dangerous nor constituted a hidden trap, testimony as to its safe condition and regular maintenance, and an expert affidavit opining that the stair was safe and in accordance with accepted customs and standards (see Griffith v. ETH NEP, L.P., 140 A.D.3d 451, 33 N.Y.S.3d 238 [1st Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209191 [2016];  see also Salman v. L–Ray LLC, 93 A.D.3d 568, 569, 941 N.Y.S.2d 52 [1st Dept. 2012]).

In opposition, plaintiffs failed to raise a triable issue of fact.  Plaintiff's affidavit detailing the conditions of the step that allegedly contributed to her fall – for instance, the lack of a left side handrail and placement and brightness of the light in the step – directly contradicted her prior testimony, and strikingly echoed the factors enumerated as “dangerous and defective conditions” in plaintiffs’ expert's affidavit.  Accordingly, plaintiff's affidavit “creates only a feigned issue of fact” and was properly disregarded by the motion court (see Telfeyan v. City of New York, 40 A.D.3d 372, 373, 836 N.Y.S.2d 71 [1st Dept. 2007] [internal quotation marks omitted]).  Without a causal connection between plaintiff's fall and the alleged defects in the stair identified by plaintiffs’ expert, the expert's opinion cannot be considered competent evidence (see id.;  Daniarov v. New York City Tr. Auth., 62 A.D.3d 480, 481, 879 N.Y.S.2d 404 [1st Dept. 2009]).  In any event, plaintiffs’ expert did not cite to any authority for his opinion, and thus it was of no probative value (see Buchholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 8–9, 798 N.Y.S.2d 715, 831 N.E.2d 960 [2005]).

We have considered plaintiffs’ remaining contentions and find them unavailing.