TOMAINO v. 209 EAST 84TH STREET CORP (2010)

Orders, Supreme Court, New York County (Paul G. Feinman, J.), entered October 19, 2009, which denied defendant's motions for summary judgment dismissing the complaint and to preclude plaintiffs' expert testimony, respectively, unanimously affirmed, without costs.

Defendant failed to satisfy its prima facie burden of establishing the absence of issues of fact concerning the injured plaintiff's inability to identify the cause of her fall and whether it created or had actual or constructive notice of the hazardous condition that caused the fall (see Weingrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Fernandez v. VLA Realty, LLC, 45 A.D.3d 391 [2007]; Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 109 [2006] ).

We reject defendant's contention that plaintiff was required to identify at the time of the accident exactly where she fell and the precise condition that caused her to fall (see Welch v. Riverbay Corp., 273 A.D.2d 66 [2000]; Vitanza v. Growth Realties, 91 A.D.2d 917 [1983]; Gramm v. State of New York, 28 A.D.2d 787, 788 [1967], affd 21 N.Y.2d 1025 [1968] ). Plaintiff identified the location of her fall in her deposition testimony and stated that she pointed this location out to an employee of defendant when he found her at the bottom of the stairs. Although she did not know at the time that she slipped on the steps because of the worn treads, she discovered this when she returned to the scene a few weeks later (see Seivert v. Kingpin Enters., Inc., 55 A.D.3d 1406 [2008]; Sweeney v. D & J Vending, 291 A.D.2d 443 [2002] ). Based on the testimony of two employees of defendant that the photographs taken two to three months after the accident accurately represented the condition of the treads on the steps before and on the day of the accident, there is no reason to believe that the condition of the treads changed significantly between the date of the accident and the date of plaintiff's return to the scene.

The court properly declined to preclude plaintiffs' expert's affidavit and testimony. Plaintiffs established good cause for the untimely disclosure (see LaFurge v. Cohen, 61 A.D.3d 426 [2009], lv denied 13 N.Y.3d 701 [2009]; St. Hilaire v. White, 305 A.D.2d 209, 210 [2003] ), which does not appear to have surprised or prejudiced defendant (see Moreno v. Fabre, 46 A.D.3d 254, 255 [2007] ).

We have considered defendant's remaining contentions and find them unavailing.