[*1]
Jaquez v Lind-Ric Hous. Co., Inc.
2015 NY Slip Op 50961(U) [48 Misc 3d 1204(A)]
Decided on June 19, 2015
Supreme Court, Bronx County
Hunter, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 19, 2015
Supreme Court, Bronx County


Luis Jaquez, Plaintiff,

against

Lind-Ric Housing Company, Inc. and Metro Management Development, Inc., Defendants.




20120/2012E



Appearances:



Plaintiff:



Patrick J. Mullaney, Esq.



Mullaney & Gjelaj PLLC



100-09 Metropolitan Avenue



Forest Hills, New York 11375



(718) 821-8100



Defendants:



Andrew D. Harms, Esq.



Rubin, Fiorella & Friedman LLP



630 Third Avenue, 3rd Floor



New York, New York 10017



(212) 953-2381


Alexander W. Hunter Jr., J.

The defendants' motion for an order pursuant to CPLR 3212 granting them summary judgment and dismissing the complaint is granted.



The cause of action is for personal injuries allegedly sustained by the plaintiff when he tripped and fell while walking down an internal stairwell in the defendants' building located at 2410 Barker Avenue, Bronx, New York (the "subject building") on January 28, 2009. The plaintiff has lived in apartment 4D of the subject building since August 2000. At around 12:30AM the plaintiff was returning to his apartment after visiting a friend on the 5th floor of the subject building. The plaintiff was walking down Stairwell A of the building from the 5th floor to the 4th floor, when the plaintiff alleges he slipped and fell due to the stairs being "slippery" and therefore, dangerous and unsafe.



The defendants argue that they are entitled to summary judgment as a matter of law because there are no triable issues of fact. The defendants assert that they did not create a [*2]defective condition and that there was no defective condition on the stairs that caused the plaintiff's accident. The defendants concede that there was paint present on the stairs, but they argue that the paint did not create a defective condition by making the floor unsafe due to being slippery and that the stairwell had adequate artificial light at all times. In addition, the defendants maintain that the handrail on the stairs was firmly intact after the accident occurred.



The defendants further maintain that even if there was a defective condition, the plaintiff has failed to establish that they had actual or constructive notice of the condition of the stairs. The plaintiff admits in his deposition that he had not filed a complaint about the stairs and he had been using them regularly for two weeks without any difficulties.



The plaintiff opposes the defendants' motion in its entirety, stating that the stairwell violates multiple building code requirements and that said violations were the proximate cause of the plaintiff's slip and fall. The plaintiff asserts that the defendants breached their duty as landowners to maintain a safe stairwell. The testimony offered by the plaintiff's expert alleges that the inconsistent riser height and tread width of the stairs, the lack of proper nosing, the lack of a second handrail, and the enamel paint applied to the stairs caused the plaintiff's fall.



In reply, the defendants point out that the only cause for the fall identified by the plaintiff was that the stairs were shiny. The defendants argue that the other issues referred to by the plaintiff's expert are unrelated to the plaintiff's claim. The defendants further claim that the testimony of the plaintiff's expert did not meet the requirements to establish that the enamel paint on the stairs actually caused the stairs to be "slippery." Finally, the defendants assert that the plaintiff acknowledged that he had not experienced any difficulties using the stairs twice a day for the two weeks preceding his accident and that he did not have any trouble seeing where he was going, nor did he see any debris or wet spots.



It is well settled that summary judgment is a drastic remedy that should only be granted when there are no triable issues of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 (1978); Andre v. Pomerov, 35 NY2d 261 (1974); C.P.L.R. 3212(b). The onus is upon the movant to make a prima facie showing of entitlement to summary judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Once such a showing is made, the party opposing the motion must submit proof in admissible form to show the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion." Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736, 737 (2nd Dept. 2007); see also, Flores v. City of New York, 66 AD3d 599 (1st Dept. 2009).



In order for a plaintiff to establish a prima facie case of negligence, he must prove that: (1) the defendants owed him a duty of care; (2) the defendants breached that duty of care; and (3) the breach was the proximate cause of his injuries. Solomon v. City of New York, 66 NY2d 1026 (1985). In a slip and fall case, the plaintiff must be able to identify what caused the fall in order for it to be the proximate cause of his accident. Richards v. Khans Realty Corp., 2012 WL 10007722, affd 114 AD3d 475 (1st Dept. 2014) citing Hodge v. Niagara Falls Gazette [*3]Publishing Co., 1 NY2d 801 (1956) ("it is of no moment that Plaintiff's expert cites deficiencies in height, width and length of the risers, and the height of the handrail since Plaintiff did not mention that those conditions led to her mishap"). If the plaintiff can identify the area in which he fell, but not the proximate cause of his accident, expert testimony may be used to establish the proximate cause. Rodriguez v. Leggett Holdings, LLC, 96 AD3d 555 (1st Dept. 2012); Babich v. R.G.T. Rest, Corp., 75 AD3d 439 (1st Dept. 2010). When alleging that high gloss enamel paint on interior stairs caused a slip and fall, the expert affidavit must specify that testing was performed on the stairwell surface demonstrating that the paint caused the defective condition or cite specific industry standards stating the same with respect to that particular paint, or it will be rejected. Gibbs v. 3220 Netherland Owners Corp., 38 Misc 3d 1205(A), 2 (Sup. Ct, Bronx County 2012) affd 99 AD3d 621 (1st Dept. 2012). Stairs must be made "slippery" by negligently applied wax or polish to create a cause of action or inference of negligence. Richards, 114 AD3d 475 (1st Dept. 2014).



In the instant matter, the plaintiff failed to establish that triable issues of fact exist as to whether the defendants were negligent with respect to the interior stairs where he fell. Despite not knowing the exact stair on which he fell, the plaintiff was able to identify the area of the stairs on which the accident occurred. This means that the expert's affidavit may be used to identify the cause of the slip in that area. The plaintiff argues that the high gloss enamel paint used by the defendants on the stairs eliminated the non-skid properties that the concrete stairs inherently possessed, causing the slippery condition of the stairs in the area where he fell. Other than stating that the steps are slippery, the plaintiff's expert, in his affidavit, does not identify any tests that were conducted on the surface of the stairwell, nor cite any specific industry standards stating that the paint used would cause an unsafe and slippery condition. Further, the plaintiff had used the stairs in question regularly leading up to the accident and never experienced difficulties with them before. Thus, the plaintiff failed to meet his burden in opposing the instant motion.



Accordingly, the defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety.



Movant is directed to serve a copy of this order with notice of entry upon all parties within twenty (20) days of entry and file proof thereof with the clerk's office.



This constitutes the decision and order of this court.



Dated: June 19, 2015ENTER:

_________________________



J.S.C.