KATZ v. 260 PARK AVENUE SOUTH CONDOMINIUM ASSOCIATES (2019)

Defendants established prima facie that the defect in the step on which plaintiff allegedly slipped and fell did not constitute an unsafe condition via photographs that showed no large cracks or holes in the step and an expert affidavit opining that the measured height differential of between 1/4 to 3/8 of an inch was trivial (see McCullough v. Riverbay Corp., 150 A.D.3d 624, 52 N.Y.S.3d 854 [1st Dept. 2017];  Lovetere v. Meadowlands Sports Complex, 143 A.D.3d 539, 539, 39 N.Y.S.3d 146 [1st Dept. 2016] ).  In opposition, plaintiff raised an issue of fact via an expert affidavit opining that a chipped segment of the stair tread, which measured 9 inches in length and varied in height from 1/4 to 1–1/8 inches, caused plaintiff's accident (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 82, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ).

Contrary to defendants' contentions, the record also presents issues of fact as to whether plaintiff was intoxicated at the time of the accident and whether her conduct in deciding to descend a darkened stairwell during a power outage was so egregious or unforeseeable as to constitute the sole or superseding cause of the accident (see Soto v. New York City Tr. Auth., 6 N.Y.3d 487, 492, 813 N.Y.S.2d 701, 846 N.E.2d 1211 [2006];  Malleret v. Federal Express Corp., 100 A.D.3d 567, 568, 957 N.Y.S.2d 10 [1st Dept. 2012] ).  Moreover, any inconsistencies in plaintiff's account of the accident present credibility issues for determination by a factfinder (see Campos v. 68 E. 86th St. Owners Corp., 117 A.D.3d 593, 594, 988 N.Y.S.2d 1 [1st Dept. 2014] ).