TAI WONG v. 15 MONROE REALTY INC (2021)

entered August 4, 2020, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie that it was not liable for the injuries plaintiff sustained in falling down stairs by submitting plaintiff's testimony that his foot slipped because of the smoothness of the step (see DeCarbo v. Omonia Realty Corp., 181 A.D.3d 438, 438, 120 N.Y.S.3d 315 [1st Dept. 2020] [“A worn marble tread, without more, is not an actionable defect”];  Richards v. Kahn's Realty Corp., 114 A.D.3d 475, 979 N.Y.S.2d 595 [1st Dept. 2014]).  Plaintiff testified that there was no debris, liquid, or anything else on the step that caused him to slip.

In opposition, plaintiff failed to raise an issue of fact.  His expert's unaffirmed report is speculative, as the expert did not personally inspect the step at issue but merely examined undated, unauthenticated photographs of it (see Garcia–Rosales v. 370 Seventh Ave. Assoc., LLC, 88 A.D.3d 464, 465, 930 N.Y.S.2d 183 [1st Dept. 2011]).  The expert's opinion that the cause of plaintiff's fall was the worn condition of the center of the step, along with inadequate lighting, is also speculative because plaintiff was unable to identify the part of the step on which his foot slipped (see Lee v. Port Chester Costco Wholesale, 82 A.D.3d 842, 843, 918 N.Y.S.2d 549 [2d Dept. 2011]), and he never testified that poor lighting contributed to his fall.  The expert's opinion that defendant violated certain provisions of the Multiple Dwelling Law is not properly considered, because plaintiff raised no such claims in his bill of particulars (see Gonzalez v. Mount Vernon Neighborhood Health Ctr., Inc. 135 A.D.3d 618, 22 N.Y.S.3d 872 [1st Dept. 2016]).  In any event, the record evidence shows that those provisions are inapplicable (see id.).