BERROA v. CARNEY

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Supreme Court, Appellate Division, First Department, New York.

Betania BERROA, Plaintiff-Respondent, v. John P. CARNEY, Defendant-Appellant.

Decided: November 26, 2002

NARDELLI, J.P., TOM, LERNER, and MARLOW, JJ. Alexander J. Wulwick, for Plaintiff-Respondent. Candice A. Pluchino, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Janice Bowman, J. and a jury), entered August 23, 2001, in an action for personal injuries sustained when plaintiff fell on the exterior steps leading down to the basement apartment in a building owned by defendant, apportioning fault 100% against defendant and awarding damages to plaintiff, unanimously affirmed, without costs.

 The finding that plaintiff's fall was proximately caused by defendant's negligent maintenance of the premises is amply supported by plaintiff's testimony that she could not see the steps because the entryway into the basement apartment was dark, and the testimony of plaintiff's expert that the steps did not comport with good safety practices in that they lacked adequate lighting and a handrail (see Santiago v. New York City Hous. Auth., 268 A.D.2d 203, 203-204, 701 N.Y.S.2d 31).   Nor was it against the weight of the evidence for the jury to find that plaintiff was not comparatively negligent in the way she attempted to descend the steps-by putting her left foot on the first step, and then stepping down with her right foot onto the same step instead of the second step.   The steps were dark and lacked a handrail, and the jury could reasonably find that plaintiff's gingerly manner was neither unusual nor imprudent.   Defendant failed to preserve his various challenges to the testimony of plaintiff's expert and the trial court's charge, and we decline to review them.