FRIBERG v. LLC (2021)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered August 28, 2019, which granted the motions of defendants City of New York and LeSaga LLC for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

Defendants established prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when, during the course of a rainstorm, he fell on a staircase outside of a building owned by LeSaga and occupied by the City. “Mere wetness on a walking surface due to rain does not constitute a dangerous condition” (Ceron v. Yeshiva Univ., 126 A.D.3d 630, 632, 7 N.Y.S.3d 66 [1st Dept. 2015]).

Defendants also demonstrated their entitlement to summary judgment by submitting evidence that they did not have prior complaints about the steps or complaints about prior accidents (see Savio v. Rose Flower Chinese Rest., Inc., 103 A.D.3d 575, 959 N.Y.S.2d 694 [1st Dept. 2013];  Chung v. W. Hotel, 16 A.D.3d 356, 791 N.Y.S.2d 435 [1st Dept. 2005]).  The City was not required to submit evidence demonstrating when it last inspected or cleaned the staircase, as plaintiff's accident occurred during a rainstorm in progress (see Pippo v. City of New York, 43 A.D.3d 303, 304, 842 N.Y.S.2d 367 [1st Dept. 2007]).

In response to defendants' expert's affidavit in which he opined that the steps complied with the Building Code and were not unsafe, plaintiff's expert described the step on the staircase where plaintiff slipped as worn, concluding that it was dangerously slippery when wet.  Because this conclusion is not supported by any empirical data obtained by scientific analysis, plaintiff fails to raise a triable issue of fact (see Silber v. Sullivan Props., L.P., 182 A.D.3d 512, 513, 123 N.Y.S.3d 115 [1st Dept. 2020];  Clarke v. Verizon N.Y., Inc., 138 A.D.3d 505, 506, 29 N.Y.S.3d 329 [1st Dept. 2016], lv denied 28 N.Y.3d 906, 2016 WL 6432797 [2016]).

Plaintiff's affidavit in which he stated that as he fell he tried to grab onto something but there was nothing there, failed to raise an issue of fact as to whether the lack of handrails caused his accident.  The affidavit contradicted his testimony that he fell as a result of rainwater pooling on the steps, not because of the absence of a handrail (see Greco v. Pisaniello, 139 A.D.3d 617, 618, 30 N.Y.S.3d 855 [1st Dept.2016];  see also Mermelstein v. East Winds Co., 136 A.D.3d 505, 24 N.Y.S.3d 643 [1st Dept. 2016]).