Defendant's motion or an Order pursuant to CPLR § 3212 granting summary judgment

and Plaintiff's cross-motion for an Order pursuant to CPLR § 3042(b) seeking leave to amend

her Bill of Particulars are consolidated for Decision herein.

Defendant's motion is GRANTED.

Plaintiff's cross-motion is DENIED.

Background

Plaintiff alleges that she slipped and fell in water located on an interior stairway within

Defendant's building. The stairway was located between the first floor and the lobby.

Defendants are seeking summary judgment on the grounds that it did not cause or create the

condition, nor did it have actual or constructive notice of the condition. Plaintiff opposes the

motion on the grounds that Defendant created the slippery condition by failing to install foot

traction/slip resistant materials on the stairway and by painting the concrete step with high gloss

enamel paint. Plaintiff wishes to amend her Bill of Particulars to these claims forwarded by her

opposition to Defendant's motion.

MSJ STANDARD [*2]

"To obtain summary judgment it is necessary that the movant establish his cause of action

or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor

(CPLR 3212, subd [b]) and he must do so by tender of evidentiary proof in admissible form. On

the other hand, to defeat a motion for summary judgment the opposing party must show facts

sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b]). " Friends of Animals v.

Assoc. Fur Mfrs., 46 NY2d 1065, 1067-68.

In order to subject a property owner to liability for a hazardous condition on its

premises, a plaintiff must demonstrate that the owner created, or had actual or

constructive notice of the dangerous condition, which precipitated the injury.

In the case of actual or constructive notice, plaintiff must also show that the owner

had a sufficient opportunity, with the exercise of reasonable care, to remedy the

situation.

Smith v. Costco Wholesale Corp., 50 AD3d 499, 500 (citations omitted). "[T]he burden is on

the plaintiff to prove not only that a dangerous condition existed on the premises but also that the

landlord had notice of that condition and a reasonable opportunity to repair it," Juarez by Juarez

v. Wavecrest Mgmt. Team, 88 NY2d 628, 642.

Discussion

Defendant has met its prima facie burden of showing that it did not cause or create the

condition at issue, or that it had actual or constructive notice of the condition. Plaintiff's

opposition does not address these issues whatsoever. Rather, Plaintiff submitted the Affidavit of

Stanley Fein, Professional Engineer, who opined that Defendant departed from good and

accepted building safety practices by failing to install foot traction/slip resistant materials in the

tread of the step in question as required by New York City Building Code § C26-292.0 (6.4.1.7.1

(g)) and by painting the stairway with high gloss enamel paint. The Court finds that Plaintiff's [*3]

expert has failed to raise a triable issue of fact for two reasons.

Exit stairs

First, New York City Building Code § C26-292.0 (6.4.1.7.1 (g)) is inapplicable because

the stair at issue was not an "exit stair."

Stairs and stairways serving an exit shall be constructed of incombustible material

or assemblies throughout, except in frame and non-fireproof structures forty feet or

less in height and occupied by fifty or less persons above the first story. The treads

and landings shall be constructed and maintained in such manner as to prevent

persons from slipping thereon.

New York City Building Code § C26-292.0 (6.4.1.7.1 (g)) (emphasis added).

"As a matter of statutory construction, a court must attempt to effectuate the intent of the

Legislature and where the terms of a statute are clear and unambiguous, the court should construe

it so as to give effect to the plain meaning of the words used." Matter of World Trade Ctr.

Bombing Litig., 17 NY3d 428, 442. "Exit" means "a way out." Black's Law Dictionary, 7th ed. at

596. The stairwell where Plaintiff allegedly slipped and fell took her from the first floor to the

lobby—not out of the building itself. Thus, it is not a "required exit stair." Compare Truncellito v.

Carroll's Florist Corp., 2010 NY Slip Op 20152 (finding that "two steps that lead up from the

entry doors to the main floor" were "required exit stairs" under § C26-292.0), with Union Bank &

Trust Co. V. Hattie Carnegie, Inc., 1 AD2d 199, 200 (finding that stairs that "led only from the

fitting room to the main salon" were not "required exit stairs"). The code cited to by Mr. Fein in

support of his claim that Defendant should have installed foot traction/slip resistant materials on

the stairway is inapplicable.

Unsupported opinion

[*4]Next, Mr. Fein's opinion regarding Defendant painting the stair in high gloss enamel paint

is unsupported by the facts and law, and is fraught with speculation and conjecture. Mr. Fein

surmises that the high gloss enamel pain prevented any water from bing absorbed, thus, causing

Plaintiff's alleged mishap. Mr. Fein failed to conduct any testing on the surface to see if the paint

made the step dangerous. See Sanders v. Morris Hgts. Mews Assoc., 69 AD3d 432 (rejecting Mr.

Fein's opinion because he "failed to reference a specific standard by asserting a minimum

acceptable coefficient of friction"). Nor does he cite to any specific industry standard that was

violated by the use of this "high gloss enamel paint." See Sarmiento v. C & E Assoc., 40 AD3d

524.

Amendment

Plaintiff wishes to amend her Bill of Particulars to include: reference to New York City

Building Code § C26-292.0 (6.4.1.7.1 (g)), instead of § 27-375(h); a claim of negligence based on

painting the stair high gloss enamel paint; claims of notice regarding the missing treads and the

paint. "Amendment of a bill of particulars is freely given absent prejudice or surprise unless the

amendment is sought on the eve of trial." Singh v. Rosenberg, 32 AD3d 840, 842. An amendment

may be denied, however, if it appears to ve plainly without merit. Sihly v. NYCTA, 282 AD2d

337. The Court determined in deciding Defendant's motion for summary judgment that none of

these claims—as posted by Mr. Fein—were sufficient to forestall granting Defendant's

application. Thus, they are "plainly without merit."

The foregoing shall constitute the decision and order of this Court.