EDWARDS v. LEVY (2019)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered August 2, 2018, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendants established their prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when, while carrying a ladder with both hands, he slipped down the front porch stairs of defendants' house. Plaintiff testified that it had rained about one to two hours before the accident and that his fall was caused by his wet feet from the rain. “Mere wetness on a walking surface due to rain does not constitute a dangerous condition” (Greco v. Pisaniello, 139 A.D.3d 617, 618, 30 N.Y.S.3d 855 [1st Dept. 2016]). Moreover, based on plaintiff's testimony, defendants had no duty to remedy the wet condition within an hour or two after the rain (see e.g. Perez v. Abbey Assoc. Corp., 103 A.D.3d 573, 960 N.Y.S.2d 42 [1st Dept. 2013]), and both defendants testified that they had no knowledge of prior accidents on the stairs, which were not slippery when wet.

In opposition, plaintiff failed to raise a triable issue of fact. His contention that the absence of a handrail on the stairs was a dangerous condition and a proximate cause of his fall is unavailing since he was carrying a ladder in both hands and testified that he fell because his feet were wet (see e.g. Perez v. River Park Bronx Apts., Inc., 168 A.D.3d 465, 466, 91 N.Y.S.3d 78 [1st Dept. 2019]; Robinson v. 156 Broadway Assoc., LLC, 99 A.D.3d 604, 952 N.Y.S.2d 445 [1st Dept. 2012]). Furthermore, the findings of plaintiff's expert are conclusory since he never visited the site of the accident or took measurements of the coefficient of friction, and the code violations he referenced were not applicable to the subject stairs (see Perez v. Abbey Assoc. Corp., 103 A.D.3d at 573, 960 N.Y.S.2d 42).