DECARBO v. OMONIA REALTY CORP (2020)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about July 2, 2019, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the cause of action alleging negligent ownership, management and maintenance of the premises, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendants established their entitlement to judgment as a matter of law in this action where plaintiff was injured when, while descending interior stairs in defendants' building, she slipped and fell on a marble step that had a worn tread. A worn marble tread, without more, is not an actionable defect (see Sims v. 3349 Hull Ave. Realty Co. LLC, 106 A.D.3d 466, 965 N.Y.S.2d 869 [1st Dept. 2013]; Savio v. Rose Flower Chinese Rest., Inc., 103 A.D.3d 575, 959 N.Y.S.2d 694 [1st Dept. 2013]).

In opposition, plaintiff failed to raise a triable issue of fact. Having abandoned her claim that defendants were negligent in keeping the stairs free of moisture, plaintiff cannot now argue that the existence of moisture on the stairs would be an actionable condition. Nor did plaintiff's experts establish that in addition to the worn marble stair treads, they lacked adequate slip resistance, as the coefficient of friction value that the experts used as a standard value was not shown to be an accepted industry standard (see e.g. 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]; Jenkins v. New York City Hous. Auth., 11 A.D.3d 358, 360, 784 N.Y.S.2d 32 [1st Dept. 2004]). Nor did the experts' affidavits raise a triable issue of fact, since the opinions concerning the cause of plaintiff's slip were speculative (see Sarmiento v. C & E Assoc., 40 A.D.3d 524, 526–527, 837 N.Y.S.2d 57 [1st Dept. 2007]).