This motion by defendant for summary judgment dismissing the plaintiff's complaint is granted.

On January 6, 2007, on a Saturday between midnight and 1:00 am, plaintiff was ascending a staircase between the fourth and fifth floor in the defendant's building when "half"of the marble stair tread she stepped on was "loose and it cracked", it "bent up" and "fell off" onto the step below, causing plaintiff to twist her right ankle and strike her left knee (Deposition of Barbara Lance, March 11, 2009 at 37-38, 42-44). Plaintiff left the broken piece where it had fallen and continued up the stairs to her friend's apartment, visiting until approximately 5:00 am. She then went back to her own apartment by a different set of stairs, changed clothes and went directly to Foxwoods Resort with another friend to spend the day. Approximately 10 days later, she called for an ambulance to take her to an emergency room for treatment to her ankle. Two or three months later, plaintiff began to notice a problem of buckling in her left knee and sought treatment for that condition as well.

Plaintiff commenced this action against the building's owner, alleging in her bill of [*2]particulars that defendant had actual and constructive notice, for approximately six months prior to the subject occurrence, that the "marble top piece or portion from the step of said premises was caused or allowed to become disengaged from the rest of the step, rendering said step dangerous and hazardous". After the note of issue was filed on June 1, 2009, and plaintiff certified that discovery was complete, defendant made the instant motion for summary judgment dismissing the action for lack of any evidence to show the defendant had actual or constructive notice of the alleged defective condition.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing a motion for summary judgment must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]). The court will accept as true the non-movant's evidence and also any evidence of the movant favorable to the non-moving party (Weiss v. Garfield, 21 AD2d 156 [3rd Dept 1964]). Bare conclusory assertions of an expert are insufficient to defeat summary judgment (Wright v. NYCHA, 208 AD2d 327 [1st Dept 1995]). While an expert may reach conclusions in his area of expertise, he may only do so on the basis of established facts (id.).

To establish a prima facie case of negligence in a trip and fall case, a plaintiff must prove the defendant had actual or constructive notice of the dangerous or defective condition and sufficient time within the exercise of reasonable care to correct or warn about its existence (Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]). Constructive notice can be established if there is evidence the defect was visible and apparent and in that condition for a sufficient length of time that the defendant is presumed to have seen it or was negligent in failing to see it (id.). If the defendant had actual knowledge of the tendency of a particular dangerous condition to recur, defendant can be charged with constructive notice of each specific recurrence (Torres v. NYC Housing Authority, 214 AD2d 519 [1st Dept 1995]).

In support of the motion, defendant offered the pleadings, the plaintiff's bills of particulars, her deposition testimony, the deposition testimony of Ira Mack and an affidavit by Ira Mack. Plaintiff testified that, when her right foot hit the step, "obviously it was loose and it cracked and fell off" (Deposition of Barbara Lance, March 11, 2009 at 37). She used the subject staircase every day (Id. at 38-39). She never noticed a crack on that staircase before or on that particular step (Id. at 39, 41). She could not say she had ever had problems walking up that particular portion of staircase before (Id. at 55). She testified that there were a lot of "loose stairs", however, all over the building (Id. at 39, 55). She could not say whether that particular step was one of the loose steps (Id. at 55). She never complained about loose stairs prior to her trip and fall and was unaware of anyone else making complaints about loose stairs (Id. at 40). She had never seen repairs being made to any stair in the building (id.). On Sunday, after plaintiff returned from Foxwoods, she told the superintendent about the broken step and showed it to him (Id. at 50-51). Someone had put the loose piece back, but it was still loose (Id. at 53). Plaintiff never saw anyone repairing it (Id. at 54).

About 10 days after her fall, "Ira" from the management company came to plaintiff's apartment with the superintendent to ask about the stairs (Id. at 65-66). Plaintiff went with them, "pointed to the stairs", went back to her apartment and closed the door (Id. at 67). The [*3]photographs of the subject staircase shown to plaintiff at the deposition were of the stair, apparently repaired, showing an intact step (Id. at 56). Plaintiff testified she had her own photographs of the stair in its broken condition at home (Id. at 59-60).

Ira Mack testified that he was the building manager at the time of plaintiff's accident and had been the building manager for about 15 years (Deposition of Ira Mack, March 11, 2009at 7, 11). He visited the building about once a month or more, if needed, to respond to tenants' complaints (id.). He learned of plaintiff's accident from her attorney (Id. at 9-10). In late February 2007, Mack went to see the plaintiff with the superintendent (Id. at 10-11). He asked her to show him the broken stair and she went with him, but only pointed to a set of stairs (Id. at 14). Mack told her they all looked "perfectly fine" to him and she reportedly said "well, that's where I fell" (id.). When he asked which step was the one, she became "agitated" and went back to her apartment (Id. at 14-16). Mack had his camera phone and took a video of the steps she pointed to (Id. at 15-16). The steps were all in good condition (Id. at 16). Mack asked the superintendent if there were any broken stairs and he said "no" (Id. at 17). Mack asked if the superintendent had received any complaints about that staircase before the date of plaintiff's accident and he said "no" (Id. at 17-18). Any repairs to the steps were normally done by the superintendent because the repair was fairly straightforward; the marble steps were purchased pre-cut and could be slid right into the angle iron supports (Id. at 18). Mack only inspected the stairs when complaints were made (Id. at 28). He did not remember any complaints made about the condition of steps on or prior to January 6, 2007 (Id. at 31). He agreed to consult his records for invoices showing if replacement steps were purchased and repairs made.

In his affidavit dated September 1, 2009, Mack stated that, prior to the plaintiff's accident, he was never advised of the condition claimed by plaintiff. Neither he, nor any agent, servant or representative of the defendant observed the condition, nor did they cause it.

In opposition to the motion, plaintiff offered her own affidavit and the affidavit and report of a professional engineer, Scott Silberman. Plaintiff stated on October 13, 2009 that when she stepped down on the stair in question, "the step was loose and then it came loose and cracked in half". During the five years plaintiff resided in the building before her accident, she estimated that "20 to 25 of the steps were loose and that this condition existed since 2007". She never observed the building superintendent conducting any repairs on the steps.

Scott Silberman reviewed plaintiff's bill of particulars, her affidavit dated October 13, 2009 and several photographs of the subject stairway taken "after repairs were made". Silberman stated that a loose step that "suddenly shifts" is a "latent condition" that can be considered a trap since its presence is "undetectable and unrealized" until the tread is actually stepped upon. A single loose tread could not be considered a maintenance problem or a recurring condition. Numerous loose treads (20-25), however, are evidence of either poor maintenance or improperly placed treads and, thus, a "recurring condition" that should have been investigated by the building's owner. Silberman then cited various New York City Building Code provisions requiring owners to maintain their buildings, including stairways, in good repair and in a safe condition.

Defendant has demonstrated its entitlement to summary judgment which the plaintiff has not refuted with admissible evidence. Defendant has demonstrated it had neither actual nor constructive notice of the condition which allegedly caused plaintiff's injuries. Ira Mack, the [*4]building's manager, testified that he was never notified of any defect in the subject staircase prior to the subject incident and never even saw the broken stair plaintiff claimed caused her fall after the incident, although he asked her to show it to him. He stated in an affidavit that neither he nor any agent of the owner received complaints about the subject staircase prior to the date of plaintiff's fall. Plaintiff testified that she never complained about the condition of the steps prior to her accident and was unaware of anyone else complaining about them. She could not say she was aware of any defect in the subject step before her accident. Although she testified that there were "a lot of loose stairs" throughout the building, she did not say how long that condition existed prior to her fall and she admitted never bringing it to anyone's attention.

Plaintiff's submissions in opposition did not create an issue of fact for trial. Her affidavit stating there were 20 to 25 loose steps in the building since 2007 did not provide evidence of a recurring condition that existed prior to her accident or a basis by which a jury could find constructive notice. Plaintiff's accident allegedly took place after only 5 days into 2007. Even if she noticed all estimated 20 to 25 loose steps in that first 5 days of the year, she admittedly failed to report them and give actual notice to the defendant. Furthermore, according to her expert, such a condition would be "latent" and "undetectable" until someone stepped on the stair and it shifted. Under those circumstances, five days would certainly not give the building's owner sufficient time to discover and remedy the problem or be sufficient time to show an obvious recurring condition of which the building's owner had to have been aware. The number of loose steps plaintiff observed in the two years following her accident could not constitute evidence of prior notice to the defendant.

Plaintiff's expert's opinion that the stairway was improperly maintained did not create an issue of fact for trial. Scott Silberman did not examine the stairs themselves, did not read plaintiff's deposition testimony and only examined photographs of the stairs showing them to be in apparently good repair. He could not have been able to tell by merely looking at the photographs if the steps were "loose" or not, if they had ever been loose, whether the marble treads in the photographs had been recently repaired or whether they showed signs of having been on the stairs for years. He did not include the photographs with his affidavit or give the date they were taken. Even if he had been able to personally examine the stairs, his opinion that the number of "loose stairs" reported by plaintiff showed evidence of poor maintenance or poor placement is not relevant to the issue of notice since plaintiff stated that this condition was in existence "since 2007".

Movant is directed to serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the complaint.

This constitutes the decision and order of the court.

Dated: May 3, 2010

Bronx, New York

_______________________________

BETTY OWEN STINSON, J.S.C..