FOLEY v. CHATEAU RIVE EQUITIES LLC (2019)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered August 10, 2018, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants demonstrated prima facie that there was no defective condition in the staircase “at or near Unit 403,” which was the accident location that injured plaintiff Toniann Foley identified in her initial and amended bill of particulars and deposition testimony.  Plaintiff also testified that there was no debris or wetness on the stairs and could not say what caused her to fall (see Peralta–Santos v. 350 W. 49th St. Corp., 139 A.D.3d 536, 537, 30 N.Y.S.3d 553 [1st Dept. 2016];  Lee v. Ana Dev. Corp., 110 A.D.3d 479, 973 N.Y.S.2d 116 [1st Dept. 2013] ).

In opposition, plaintiffs failed to raise a triable issue of fact.  Plaintiff contends that the accident actually happened on a different staircase, identified in a second supplemental bill of particulars, where there was a worn defective step, purportedly shown in two photographs she identified at her deposition.  However, her deposition testimony concerning the accident location was clear, and the close-up photographs of the steps are of no assistance.  Plaintiff's belated attempt to change the location of her accident through her expert's affidavit and amended bill of particulars, is unavailing.  Since her expert did not examine the location described in plaintiff's testimony and initial pleadings, his affidavit did not conflict with that of defendants' expert, and thus, failed to raise an issue of fact (see Roimesher v. Colgate Scaffolding & Equip. Corp., 77 A.D.3d 425, 908 N.Y.S.2d 649 [1st Dept. 2010];  see also Sternberg v. Rugova, 162 A.D.3d 456, 78 N.Y.S.3d 325 [1st Dept. 2018] ).