EPPS v. BARFIELD REALTY CORP (2025)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered June 26, 2024, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this personal injury action, plaintiff sustained injuries when he tripped on a cracked, broken, and uneven step on the front stairway of a building owned by defendant.  Defendant failed to establish prima facie that the dangerous condition of the steps was trivial as a matter of law (Trinidad v. Catsimatidis, 190 A.D.3d 444, 444–445, 140 N.Y.S.3d 482 [1st Dept. 2021]).  Photographs of the stairway reveal that the concrete step was worn down and had visible cracks (see Nin v. Bernard, 257 A.D.2d 417, 683 N.Y.S.2d 237 [1st Dept. 1999];  Abreu v. New York City Hous. Auth., 61 A.D.3d 420, 420–421, 876 N.Y.S.2d 50 [1st Dept. 2009]).  Moreover, defendant's president, who testified that he was at the building six days a week, could not recall having the steps inspected or repaired prior to the accident and kept no records regarding the steps.  Accordingly, defendant also failed to establish prima facie that it did not have constructive notice of the defects (see Carter v. HP Lafayette Boynton Hous. Dev. Fund Co., Inc., 210 A.D.3d 580, 580, 178 N.Y.S.3d 521 [1st Dept. 2022]).

Since defendant failed to meet its prima facie burden on summary judgment, we need not consider plaintiff's opposition papers (see Trinidad, 190 A.D.3d at 445, 140 N.Y.S.3d 482), including the expert affidavit, which plaintiff properly submitted under CPLR 3212(b).  If considered, the expert affidavit would raise triable issues of fact as to whether defendant was negligent in maintaining the stairway.