LANDAHL v. STEIN (2018)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered March 29, 2017.  The order denied the motion of defendants for summary judgment.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries allegedly sustained by plaintiff William Landahl when a stair tread on the stairs of an outdoor deck located on defendants' property broke, causing him to fall.  We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the complaint.  Defendants met their initial burden of establishing that they neither created nor had actual or constructive notice of the allegedly dangerous or defective condition of the stair tread, and plaintiffs failed to raise a triable issue of fact in opposition (see generally King v. Sam's E., Inc., 81 A.D.3d 1414, 1414–1415, 917 N.Y.S.2d 480 [4th Dept. 2011] ).  Contrary to plaintiffs' contention, “[t]he photographs of the accident site, which did not [clearly] depict [the stairs], and the affidavit of the plaintiff[s'] expert, who never inspected the staircase, were insufficient to raise a triable issue of fact” (Hoffman v. Brown, 109 A.D.3d 791, 792, 971 N.Y.S.2d 130 [2d Dept. 2013] ).

We have considered plaintiffs' remaining contentions and conclude they are without merit.