SCHOLAR v. CITADEL ESTATES LLC (2019)

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about October 31, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff claims that she was injured when she fell while descending a well-lit stairway during daylight hours on August 8, 2013 in a Brooklyn building where she had often previously used the stairway, on which occasions she never noticed any defects.  On the day of the accident she was visiting her boyfriend's apartment and when she first ascended the stairway she had not noticed any debris, liquid or defects in the stairway.  She testified that as she descended from the second floor landing, holding the handrail and wearing flip flops, she “bumped into something” with her left foot, causing her to fall, and that she reached for but missed the handrail.  She approximated that whatever she bumped into was three, four or five steps down from the landing.  Although she had not then observed any impediment, she later noticed a “squiggly crack” less than a quarter inch in width along the width of the side of either the fourth or fifth step.  However, she did not know if the crack was what her flip flop had come into contact with.  She later testified that a step had moved when she bumped her foot and that this, rather than the crack, had caused her to trip, but then she subsequently reconsidered her testimony to conclude that the bump was caused by the crack.

Plaintiff testified that she had never complained to the owner about the stairs.  The building superintendent testified that no one had complained about the condition of the stairs, he was unaware of anyone having fallen on them, and no Department of Buildings violations had been issued.  The superintendent testified that he used the staircase several times daily, swept it each day and mopped it on Sundays, and had never observed any cracks in or felt any sensation on the stairs.  When he saw plaintiff on a later occasion, when her foot was in a cast, she mentioned that she had fallen on the stairs but did not explain how, and she had never filled out an accident report.

Plaintiff's boyfriend testified that he had never experienced any difficulty with the staircase.  After plaintiff fell, she returned to his apartment with an injured right leg and stated that she had slipped on the steps, but did not state what caused her to slip.  He testified that as he descended the staircase to tell the superintendent about the accident, he did not observe any cracks in the steps between the first and second floors, none moved when he stepped on them, and there was no debris.

Supreme Court properly dismissed the action insofar as no evidence established proximate cause for the accident.  Plaintiff's testimony, even as amplified by that of her boyfriend, was, at best, speculative as to causation (Taub v. Art Students League of N.Y., 39 A.D.3d 259, 834 N.Y.S.2d 108 [1st Dept. 2007]).  If there had been a defect on a stair, plaintiff's conjecture failed to establish its causative role (Kane v. Estia Greek Rest., 4 A.D.3d 189, 772 N.Y.S.2d 59 [1st Dept. 2004]), especially in view of her testimonial uncertainty (Lee v. Ana Dev. Corp., 110 A.D.3d 479, 973 N.Y.S.2d 116 [1st Dept. 2013];  Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 A.D.2d 63, 68, 750 N.Y.S.2d 277 [1st Dept. 2002]).  Even if we accepted plaintiff's equivocal speculation that her flip flop was caught in a crack on a stair, such a defect was too trivial to support her claim of proximate causation (Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015]).  Plaintiff's own testimony also defeats her present attempt to predicate liability on the height of the handrail, since on these facts the handrail, regardless of its height, did not cause her fall (Uppstrom v. Peter Dillon's Pub, 172 A.D.3d 497, 100 N.Y.S.3d 239 [1st Dept. 2019]).  Moreover, she had found the handrail to be stable and accessible to her when she had earlier ascended the stairs and as she descended just before she slipped (Pezzello v. Pierre Congress Apts., LLC, 169 A.D.3d 403, 92 N.Y.S.3d 43 [1st Dept. 2019] ).  Her bareboned testimony that she missed the handrail does not by itself support a conclusion that the handrail's height caused her fall (compare Sussman v. MK LCP Rye LLC, 164 A.D.3d 1139, 82 N.Y.S.3d 405 [1st Dept. 2018]).  Finally, the evidence sets forth no evidence that defendant had either actual or constructive notice of any defect in the staircase (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986];  Schulman v. City of New York, 157 A.D.3d 548, 68 N.Y.S.3d 76 [1st Dept. 2018]), especially in the absence of any prior incidents involving the steps (id.;  Langer v. 116 Lexington Ave., Inc., 92 A.D.3d 597, 598, 939 N.Y.S.2d 370 [1st Dept. 2012], lv denied 24 N.Y.3d 907, 2014 WL 5369099 [2014];  Burke v. Canyon Rd. Rest., 60 A.D.3d 558, 876 N.Y.S.2d 25 [1st Dept. 2009]).

We have considered plaintiff's remaining arguments and find them unavailing.