GLUECK v. STARBUCKS CORPORATION (2019)

Order, Supreme Court, New York County (Robert R. Reed, J.), entered October 31, 2018, which granted defendants' motions for summary judgment dismissing the complaint, and denied plaintiff's cross motion for summary judgment on the issue of liability, unanimously affirmed, without costs.

Defendants' motions for summary judgment were properly granted in this action where plaintiff alleges that she was injured when she tripped and fell while exiting defendants' premises;  the entrance/exit to the premises has two steps outside the building.  The record shows that plaintiff, who was walking with a cane, could not identify the cause or location of her fall, giving multiple versions of the accident, including stating that she had missed a step (see Fishman v. Westminster House Owners, Inc., 24 A.D.3d 394, 806 N.Y.S.2d 550 [1st Dept. 2005];  Kane v. Estia Greek Rest., 4 A.D.3d 189, 190, 772 N.Y.S.2d 59 [1st Dept. 2004]).  Nor could the nonparty witnesses identify the location of plaintiff's accident, stating that they made assumptions as to where plaintiff may have fallen, but did not actually see her fall.  Plaintiff was unable to identify any defective condition at the location of her fall, the photographs of the area in front of the premises depicted two steps, in good repair, and there were no cracked or broken surfaces or foreign substances.

Plaintiff's reliance on the report of an engineering expert, who opined that there were violations of New York City Building Codes of 1916 and 1938 and unspecified recent codes that incorporate a certain standard of the American National Standards Institute, is misplaced.  The report is unsworn and is therefore inadmissible for the purposes of summary judgment (see Ulm I Holding Corp. v. Antell, 155 A.D.3d 585, 586, 66 N.Y.S.3d 233 [1st Dept. 2017]).  In any event, the report is speculative and conclusory (see Morrissey v. New York City Tr. Auth., 100 A.D.3d 464, 953 N.Y.S.2d 503 [1st Dept. 2012]).  In view of the foregoing, plaintiff's cross motion for summary judgment on the issue liability was properly denied.