MOLINA v. DIMON (2019)

Defendants established their prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that he slipped and fell on a slippery mold condition on a porch step at defendants' home when he was delivering a package.  Defendants demonstrated through the testimony of defendant Samuel Dimon that they did not create or have actual or constructive notice of the alleged dangerous condition, as they and their invitees regularly used the steps without incident and were not aware of any slippery mold condition (see Lovell v. Thompson, 143 A.D.3d 511, 39 N.Y.S.3d 420 [1st Dept. 2016] ).  Defendants also relied on plaintiff's deposition testimony that before the accident, the porch step appeared safe, the porch area was dry, and there was no dirt or debris, which indicates that the alleged defective condition was not visible and apparent so as to constitute constructive notice (see Vasquez v. Nealco Towers LLC, 160 A.D.3d 496, 74 N.Y.S.3d 533 [1st Dept. 2018] ).

In opposition, plaintiff failed to raise a triable issue of fact.  The conclusions of plaintiff's experts that there was mold, moss, and mildew on the steps were speculative and conclusory, as they were inconsistent with plaintiff's testimony regarding the condition of the steps (see Feaster–Lewis v. Rotenberg, 93 A.D.3d 421, 422, 939 N.Y.S.2d 421 [1st Dept. 2012], lv denied 19 N.Y.3d 803, 946 N.Y.S.2d 105, 969 N.E.2d 222 [2012] ).  Moreover, the opinion of the experts that the moss was slippery is speculative, as they did not touch the step in question or attempt to recreate the circumstances surrounding plaintiff's fall (see Sanders v. Morris Hgts. Mews Assoc., 69 A.D.3d 432, 892 N.Y.S.2d 99 [1st Dept. 2010] ).  The photographs taken by the engineering expert over a year after the accident showing wood steps with a greenish tinge, does “not establish an apparent and visible slippery or otherwise dangerous condition on the stairs” (Decker v. Schildt, 100 A.D.3d 1339, 1341, 955 N.Y.S.2d 259 [3d Dept. 2012] ).

We have considered plaintiff's remaining arguments and find them unavailing.