THOMPSON SHEPARD v. LIDO HALL CONDOMINIUMS (2019)

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered August 25, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

This action, brought to recover damages for injuries sustained by plaintiff's decedent (unrelated to his death) in a fall on a staircase, rests on “pure surmise” as to the cause of the accident (see Kane v. Estia Greek Rest., 4 A.D.3d 189, 191, 772 N.Y.S.2d 59 [1st Dept. 2004] ).  It is undisputed that the accident was unwitnessed, and plaintiff's testimony, which was limited to after-the-fact observations, reflected that she did not know the cause of the accident.

Defendants waived their objection to the admissibility of plaintiff's expert's unsworn report by failing to raise it before the motion court (see Shinn v. Catanzaro, 1 A.D.3d 195, 198, 767 N.Y.S.2d 88 [1st Dept. 2003] ).  However, in any event, the report does not raise a triable issue of fact (see Kane, 4 A.D.3d at 190, 772 N.Y.S.2d 59;  Mandel v. 370 Lexington Ave., LLC, 32 A.D.3d 302, 820 N.Y.S.2d 249 [1st Dept. 2006];  Silva v. 81st St. and Ave. A Corp., 169 A.D.2d 402, 404, 564 N.Y.S.2d 326 [1st Dept. 1991], lv denied 77 N.Y.2d 810, 571 N.Y.S.2d 913, 575 N.E.2d 399 [1991] ).  Plaintiff attempts to link the expert's opinion that the staircase contained irregular and excessive riser heights with her testimony that upon arriving at the scene of the accident she saw the decedent's leg lodged in a riser.  However, her after-the-fact observation does not show that the decedent fell because of the purportedly defective riser.  Moreover, insofar as the decedent's hearsay statements cited in the expert's report can be considered, the decedent did not say that he slipped for reasons related to the risers.

In view of the foregoing, it is immaterial whether or not defendants had actual or constructive notice of defective staircase conditions (see Dapp v. Larson, 240 A.D.2d 918, 659 N.Y.S.2d 130 [3d Dept. 1997] ).  We have considered plaintiff's remaining arguments and find them unavailing.