Jaquai Ganson, Plaintiff, v. ISEN DJEVAT MURATOVIC INC BROTHERS CONSTRUCTION (2026)

In an action to recover damages for personal injuries, the defendant/third-party plaintiff moves pursuant to CPLR 3212 for summary judgment dismissing the complaint. The following papers were considered on the motion:

PAPERSNUMBERED

Notice of Motion, Affirmation, 1 — 18

Exhibits A — P

Affirmation in Opposition, 19 — 27

Exhibits A — H

Affirmation in Reply 28

Sur-Reply 29

Relevant Factual and Procedural Background

The plaintiff commenced this action to recover damages for injuries he sustained on February 9, 2023, at approximately 8:30 p.m. when he fell while descending exterior steps outside of premises owned by the defendant/third-party plaintiff 3-5 Franklin Owners Corp. (hereinafter the defendant). The complaint alleged that the defendant was negligent by, inter alia, failing to inspect, repair and maintain the steps at issue.

After the completion of discovery, the defendant moved for summary judgment dismissing the complaint. In support of its motion, the defendant submitted, among other things, an attorney's affirmation, a transcript of the plaintiff's deposition, and an affirmation of its expert engineer. At his deposition, the plaintiff testified that he moved into an apartment in the subject building in early January 2023. He typically entered and exited the building through the side door. The plaintiff used the front right staircase when returning home from work no more than five times and had "no problems going up the stairs" (NYSCEF Doc No 74 at 67). The plaintiff never made any complaints about the exterior stairs and no one had ever warned him of anyone tripping, falling, or slipping on the staircase. The plaintiff had never descended the staircase prior to the accident.

The plaintiff, who was alone at the time of the accident, described that he "was walking normally down the stairs, and when [he] stepped down, there wasn't a stair. It was, like, air, and [he] just went down" (id. at 76). When asked "[w]hat was it about the steps, the condition of the steps, if anything, that caused [him] to fall," the plaintiff responded, "it was probably . . . because it was uneven" (NYSCEF Doc No 77 at 62). The plaintiff reiterated that he "was walking down the stairs, and the stair wasn't there" (id).

The plaintiff was not holding the handrail at the time of the accident and nothing prevented him from doing so. The plaintiff had descended the upper flight of stairs and the landing with no issue. The accident occurred when he was stepping from the first step to the second step on the lower flight of stairs. It was nighttime at the time of the accident, but he did not have any difficulty seeing the stairs. When asked whether "a lack of lighting in any contribute[d] to the happening of [the] accident," the plaintiff responded, "I don't know" (NYSCEF Doc No. 74 at 80-81). The plaintiff was unsure of whether a light at the top right-hand side of the staircase was illuminated at the time of the accident. As the plaintiff descended the stairs, he "was looking everywhere," "walking normally," and "looking straight ahead, looking at everything at one time" (id. at 93). When asked whether he "had no difficulty seeing everything as [he was] coming down the stairs," the plaintiff responded "[t]hat's correct . . . you see the world in front of you" (id. at 95).

In his affirmation, Jeffrey M. Laux, a professional engineer, stated that he visited the subject building and took measurements and photographs of the exterior stairs. He noted that the stairway was constructed in 1929, made of natural stone, and comprises of an upper landing, upper flight of stairs, intermediate landing, lower flight of stairs, and lower landing. With respect to the lower flight of stairs where the accident occurred, the first step had a tread depth of 12 inches and a height of 6-1/4 inches. The second step had a tread depth of 11-7/8 inches and a height of 6-3/4 inches. Laux concluded that the ½-inch height variation and 1/8-inch depth variation between the first and second risers did not violate any applicable code, standard or ordinance and "did not pose any inordinate or unreasonable danger or risk to people making reasonable standard observation along their intended path" (NYSCEF Doc No 86, ¶ 13).

At his deposition, Marin Telesmanic testified that he has been employed as the building superintendent for 32 years and has resided at the subject building for 52 years. No one has ever reported to him any maintenance or safety issue related to the exterior stairs. No one has ever complained to him that the lighting on the exterior staircase was insufficient. He has never been notified by anyone of any injury or accident on the exterior stairs. Telesmanic testified that a cracked flagstone on the landing had been repaired about a month ago.

Brianna Cheflen testified at her deposition that she is employed by AKAM and has been the property manager of the subject building since 2020. She confirmed that AKAM is responsible for "hiring the contractors to make repairs at the direction of [the defendant]" (NYSCEF Doc No 76 at 21). Cheflen stated that in 2022, the third-party defendant Brothers Construction (hereinafter Brothers) was hired to inspect the exterior staircase. She was unaware if Brothers was asked to "determine if the stairs were in compliance with all applicable building codes" (id. at 32-33). Cheflen testified that if Brothers had discovered anything hazardous, the condition would have been repaired. She noted that a flagstone on the landing was recently replaced after a board member reported that it was cracked. Cheflen stated that at the time of the accident, she visited the subject building bi-weekly to ensure that the property was clean and "stuff is working" (id. at 38-39). Cheflen testified that she is unaware of any prior incidents involving a trip and fall on the exterior stairs. Cheflen asserted that she is unaware of any prior complaints regarding the exterior staircase.

At his deposition, Alex Zackrone testified that he has been a board member of the defendant since 1988. He stated that the plaintiff's accident was discussed at a board meeting, but he could not recall specifics. Zackrone testified that he is unaware of any resolution, recommendation, proposal or plan related to the incident. He testified that Brothers was hired in 2022 to inspect the exterior stairs, but did not know if the stairs were inspected to determine if they were in compliance with building codes or safety standards.

In a supporting affirmation, the defendant's attorney argued that the plaintiff was unable to identify the cause of his fall without engaging in speculation. He contended that other plausible causes exist, "such as a 'missed [ ] step' or loss of balance" (NYSCEF Doc No 70 at 14). The defendant's attorney asserted that there is no evidence that the defendant had actual or constructive notice of the alleged defective condition or that it created the condition. He further argued that the height variation between the first and second risers was trivial as a matter of law. The defendant's attorney contended that the New York State Multiple Dwellings Law and other codes alleged by the plaintiff to have been violated are inapplicable to this matter.

Opposition

In an affirmation in opposition, the plaintiff's attorney argued that the plaintiff's testimony that he missed a step due to uneven risers is not based on speculation. He emphasized that "the next riser was 3/4" higher, and the next tread was ½" shallower, than the previous riser and tread his body had just calibrated to" (NYSCEF Doc No 99 at 3) (emphasis omitted). The plaintiff's attorney argued that the variations between the riser heights of ¾" or more is not a minor deviation. He highlighted that the landing "had a nosing slope of 6.8° forward in the direction of travel . . . [which] is a massive defect" (id. at 8). The plaintiff's attorney stated that based on the measurements of the subject stairway, "every applicable code and standard . . . required two handrails but only one was provided" (id.). He noted that the existing handrail was "a full 3 ½ inches below the minimum 30-inch height required by the New York Sate Property Maintenance Code . . . and 7 ½ inches below the 24-inch minimum required by various codes" (id. at 9). The plaintiff's attorney further argued that inadequate illumination may have also contributed to the accident. He emphasized that Djvet Muratovic, a principal of Brothers, testified at his deposition that the defendant had never asked Brothers to inspect the overall safety of the subject stairs.

In a joint affidavit, William Marletta and Anthony J. Marletta (hereinafter the Marlettas), opined "with a reasonable degree of certainty as certified safety professionals that the risers and treads are non-uniform, which provides for a tripping/slipping hazard" (NYSCEF Doc No 10, ¶ 27). The Marlettas noted, based on their measurements of the stairway, that the risers varied in height between 5 ¼ inches to 7 7/8 inches. The first step of the lower flight of stairs had a tread depth of 13-1/8 inches and a height of 6 inches. The second step had a tread depth of 12-5/8 inches and a height of 6-3/4 inches. The Marlettas opined that "the non-uniformity of the staircases causes the stair user's foot to land further out on the stair tread and/or landing, contributing to the likelihood of slippage or risk of missing a step/misstep" (id. at ¶ 46). They also stated that the tread slope of the stairs ranged from 1.8° to 6.8° and that "[e]xcessive slopes increase the forward momentum of pedestrians descending ramps, thereby increasing the force applied to the ramp surface and increasing the likelihood of a slip and fall" (id. at ¶ 73). The Marlettas stated that although there is a flood light hanging from a nearby canopy, the canopy blocks the light from illuminating the tread where the accident occurred. They also opined that the subject staircase required two handrails and that the existing handrail was too low.

In an affidavit, the plaintiff averred that at the time of the accident, he was unable to observe that the stairs were "uneven, sloped, and non-uniform in both height and depth . . . in dark nighttime conditions" (NYSCEF Doc No 106, ¶ 6). He asserted that the fall occurred "because there was no step where [he] expected the step to be, causing [him] to feel that [he] missed the step entirely" (id. at ¶ 5). The plaintiff stated that there was no handrail on his right side and the handrail on the left side "was set very low and was not within reach from where [he] was standing at the moment of [his] fall" (id. at ¶ 8). He also contended that the area of his fall was not well-lit and "it is common sense that if the area of stairs where [his] fall occurred was properly illuminated then it could have enabled [him] to see better" (id. at ¶ 13).

Reply

In a reply affirmation, the defendant's attorney argued that the joint affidavit submitted by the plaintiff's experts is inadmissible as a matter of law because it was signed by two individuals and "fails to explicitly state which expert holds which opinion" (NYSCEF Doc No. 113, ¶ 4). He contended that the Marlettas "failed to establish the necessary individualized foundation for the opinion contained in their joint affidavit" (id. at ¶ 8). He argued that the joint affidavit "does not differentiate as to what expert did, the methodology of each expert or which opinions belong to whom" (id. at ¶ 11). The defendant's attorney emphasized that no curriculum vitae for William Marletta was annexed to the joint affidavit and, in any event, he is not qualified to opine on "human gait analysis, stair-riser biomechanics, or visual perception" (id. at ¶ 18). He stated that the ANSI standards, NFPA Life Safety Code, and National Bureau of Standards guidelines relied upon by the Marlettas are not mandatory guidelines and insufficient to raise an issue of fact. The defendant's attorney also noted that the New York State Multiple Dwellings Law is inapplicable to this case. He also argued that the plaintiff's affidavit conflicts with his prior sworn deposition testimony and is insufficient to defeat summary judgment. The defendant's attorney reiterated that the plaintiff cannot identify the cause of his fall without engaging in speculation, the defendant did not have actual or constructive notice of any alleged defect, and any alleged defect in the riser height and depth was trivial as a matter of law.

Sur-reply  ¹

In a sur-reply affirmation, the plaintiff's attorney argued that there is no support for the defendant's contention that the Marlettas joint affidavit is inadmissible. He maintains that the affidavit adequately addresses the qualifications of each expert separately and distinctly and reflects that both experts reached the same conclusions on very specific issues. The plaintiff's attorney further argued that the plaintiff's affidavit properly addresses subject matter that was not explored during his deposition.

Analysis

An owner of property has a duty to maintain the property in a reasonably safe condition (see Monastiriotis v Monastiriotis, 141 AD3d 510, 511 [2d Dept 2016]). "In a premises liability case, a defendant property owner or occupant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition or had actual or constructive notice of its existence" (Curto v Kahn Property Owner, LLC, 225 AD3d 660, 660 [2d Dept 2024]). "A defendant has constructive notice of a dangerous or defective condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Cabanas v Qui Yu Zou, 215 AD3d 726, 727 [2d Dept 2023]).

"A plaintiff's inability to identify the cause of his or her fall is fatal to a cause of action to recover damages for personal injuries because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (Adzei v Edward Builders, Inc., 221 AD3d 639, 640 [2d Dept 2023]; see Rene v Livingston Gardens, Inc., 241 AD3d 1487, 1487 [2d Dept 2025]). "[W]here it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation" (Adzei v Edward Builders, Inc., 221 AD3d at 641).

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury (see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Cabanas v Qiu Yu Zou, 215 AD3d 726, 727 [2d Dept 2023]). "Even physically small defects are actionable 'when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot' " (Snyder v AFCO Avports Management, LLC, 232 AD3d 209, 213 [2d Dept 2024], quoting Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]).

Here, viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, the defendant failed to establish, prima facie, its entitlement to judgment as a matter of law dismissing the complaint on the ground that the plaintiff could not identify the cause of his fall without resorting to speculation (see Clerveau v Green Village Meat Market Corp., 245 AD3d 790, 791 [2d Dept 2026]; Garcia v 844 Knickerbocker, LLC, 244 AD3d 950, 951 [2d Dept 2025]; cf Hernandez v 38-09 Junction Realty, LLC, 237 AD3d 676, 677 [2d Dept 2025]; Abramowitz v Stephen P. Esposito, M.D., P.C., 234 AD3d 652, 653 [2d Dept 2025]). The defendant also failed to establish, prima facie, that a dangerous condition did not exist on the exterior staircase and that the defendant did not have actual or constructive notice of the alleged dangerous condition (see Toro v McComish, 227 AD3d 1120, 1121 [2d Dept 2024]; Amparo v Christopher One Corp., 225 AD3d 652, 654 [2d Dept 2024]; Cabanas v Qiu Yu Zou, 215 AD3d 726, 728 [2d Dept 2023]; Dilorenzo v Nunziatto, 209 AD3d 838, 839 [2d Dept 2022]; Schwartz v Reisman, 135 AD3d 739, 739-740 [2d Dept 2016]).

In support of its motion, the defendant submitted a transcript of the plaintiff's deposition testimony, during which he testified that he lost his footing on the step because "when [he] stepped down, there wasn't a stair. It was, like, air, and [he] just went down" (NYSCEF Doc No 74 at 76). The plaintiff testified that his fall was likely caused by the uneven condition of the stairs and reiterated that he fell as he "was walking down the stairs, and the stair wasn't there" (NYSCEF Doc No 77 at 62). The deposition testimony of the building superintendent and the property manager established that there were no prior complaints or incidents involving the subject stairs. However, the defendant's expert acknowledged in his affidavit that the riser height and depth of the stairs were not uniform.

In addition, the evidence proffered in support of the defendant's motion failed to establish, prima facie, that the nonuniform condition of the stairs that allegedly caused the plaintiff to fall could not have been discovered upon a reasonable inspection (see Toro v McComish, 227 AD3d at 1122; Amparo v Christopher One Corp., 225 AD3d at 654-655). The photographs of the subject stairway submitted by the defendant raise a triable issue of fact regarding whether the stairway was maintained in a reasonably safe condition (see Giahn v Yakubov, 235 AD3d 955, 956 [2d Dept 2025]; Bravo v 564 Seneca Ave. Corp., 83 AD3d 633, 634-35 [2d Dept 2011]). T

Accordingly, the defendant failed to eliminate triable issues of fact as to whether a dangerous condition existed on the exterior stairs and whether the disparity in the riser heights was a proximate cause of the accident (see Garcia v 844 Knickerbocker, LLC, 244 AD3d 950, 951 [2d Dept 2025]; Amparo v Christopher One Corp., 225 AD3d 652, 654 [2d Dept 2024]; Barley v Robert J. Wilkins, Inc., 122 AD3d 1116, 1118 [3d Dept 2014]). Based on the foregoing, the defendant's motion for summary judgment is denied without regard to the sufficiency of the plaintiff's opposition papers.

Although the defendant's motion for summary judgment is denied for the reasons set forth above, it bears noting, however, that the Court agrees with the defendant that it would be speculative to conclude that the defendant's alleged failure to provide proper handrails and to properly illuminate the subject area were also proximate causes of the plaintiff's accident (see Lucas v Genting New York, LLC, 227 AD3d 795, 796 [2d Dept 2024]; Bishop v Marsh, 59 AD3d 483, 483 [2d Dept 2009]). Those assertions are unsupported by the record where the plaintiff specifically testified that he was not using the handrail at the time of the accident, never attempted to reach for a handrail, and nothing prevented him from doing so (see Joseph v Door Restaurant Corp., 231 AD3d 1135, 1136 [2d Dept 2024]; Vasquez v Nealco Towers LLC, 160 AD3d 496, 496-97 [1st Dept 2018]; cf Flores v 1298 Grand, LLC, 247 AD3d 851, 853 [2d Dept 2026]). In addition, the plaintiff explicitly testified that he did not have any difficulty seeing the stairs and never attributed the accident to a lack of lighting (see Joseph v Door Restaurant Corp., 231 AD3d at 1136; Lucas v Genting New York, LLC, 227 AD3d at 796).

Accordingly, it is hereby

ORDERED that the defendant's motion for summary judgment dismissing the complaint is denied; and it is further,

ORDERED that all other relief requested and not decided herein is denied.

The foregoing constitutes the Decision and Order of this Court.

Dated: July 14, 2026

White Plains, NY

E N T E R,

HON. ROBERT S. ONDROVIC, J.S.C.

FOOTNOTES

1.   The Court, in the exercise of discretion, considered the plaintiff's sur-reply addressing the new issue raised in the defendant's reply papers (see Rolling Acres Developers, LLC v Montinat, 166 AD3d 696, 697 [2d Dept 2018]; Allstate Ins. Co. v Raguzin, 12 AD3d 468, 469 [2d Dept 2004]).

Robert S. Ondrovic, J.