SANTANA v. EMERALD 85 87 VERMILYEA LLC (2026)

Judgment, Supreme Court, New York County (Shlomo S. Hagler, J.), entered April 30, 2025, dismissing the complaint, and bringing up for review an order, same court and Justice, entered February 24, 2025, which granted defendants' motion for summary judgment, unanimously affirmed, without costs.

Plaintiff alleges that as he descended an interior staircase between the second and third floor of a five-story apartment building, the front marble portion of the third floor landing broke, causing him to fall down the stairs.  Defendant Emerald 85–87 Vermilyea, LLC, owned the building and defendant Residential Management (N.Y.), Inc. operated, controlled, and maintained the premises at the time of the accident.

Defendants established prima facie that they were entitled to summary judgment, as they sustained their initial burden of demonstrating that they did not cause, create, or have actual or constructive notice of a defect in the top step of the staircase;  that the alleged defect was not visible or apparent;  and that a reasonable inspection would not have revealed that the step could break (see Soto v New Frontiers 2 Hope Hous. Dev. Fund Co., Inc., 118 AD3d 471 [1st Dept 2014] ).  The property manager testified that there had been no repairs since 1996, about 25 years before the accident, that would have created the defect, and plaintiff did not dispute that testimony (see Del Marte v. Leka Realty LLC, 156 AD3d 453, 453–454 [1st Dept 2017] ).

In addition, there was no evidence of any prior complaints demonstrating that defendants had actual notice of the defect (see Lance v. Den–Lyn Realty Corp., 84 AD3d 470, 470 [1st Dept 2011] ).  Plaintiff himself testified that he walked up and down the staircase several times a day without incident, including the day of his fall, and never noticed any issue with the step (id.).  The alleged condition could not give rise to constructive notice because it was not visible and apparent (id.;  see also Solarte v. Brearly, 238 AD3d 541, 541 [1st Dept 2025] ).

In opposition, plaintiff failed to raise a triable issue of fact.  After the note of issue was filed plaintiff made unpleaded allegations that the staircase's handrails and tread widths did not comply with the applicable code and contributed to the accident, these allegations constituted untimely substantive additions to the theory of the case (see Silber v. Sullivan Props., L.P., 182 AD3d 512, 513 [1st Dept 2020] ).  In any event, plaintiff did not testify that defects in the handrail and tread width were a proximate cause of his accident (see Mitchell v. 423 W. 55th St., 187 AD3d 661, 662 [1st Dept 2020] ).

Supreme Court properly determined that the affidavits of plaintiff and his wife were insufficient to raise a triable issue of fact.  To the extent plaintiff suggests in his affidavit that his accident was due to a defective handrail, this contradicts his deposition testimony.  There he testified that he fell because of the broken step, he was not holding onto the handrail when he fell and he did not notice any defect with the handrail (see Luna v. CEC Entertainment, Inc., 159 AD3d 445, 446 [1st Dept 2018] ).  Plaintiff's wife stated in her affidavit that portions of the subject step “were loose” and needed repair eight months before the accident, but this testimony directly conflicts with plaintiff's earlier deposition testimony that he used the staircase several times a day during that same time period without issue (see Rodriguez v. New York City Hous. Auth., 304 A.D.2d 468, 469 [1st Dept 2003] ).  The wife's photographs of the area after the accident also fail to raise a triable issue of fact as to constructive notice because plaintiff never established that the photographs were a fair and accurate representation of the conditions when he fell (see Kaplan v. Einy, 209 A.D.2d 248, 251 [1st Dept 1994] ).

Contrary to plaintiff's contention, the deposition transcript of defendants' property manager was admissible despite the fact that it was unsigned (see CPLR 3116[a];  Franco v Rolling Frito–Lay Sales, Ltd., 103 AD3d 543, 543 [1st Dept 2013] ), as defendants accepted its accuracy by submitting it in support of their own summary judgment motion (see Nyambuu v Whole Foods Mkt. Group, Inc., 191 AD3d 580, 582 [1st Dept 2021] ).  Moreover, the transcript was certified by the court reporter, and plaintiff does not challenge its accuracy (see Singh v. New York City Hous. Auth., 177 AD3d 475, 475 [1st Dept 2019] ).  Nor was defendants' submission of an excerpt from plaintiff's deposition transcript fatal to their motion, because the excerpt was not misleading (see Castano v. Wygand, 122 AD3d 476, 477 [1st Dept 2014] ).

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