This personal-injury action, brought by plaintiff, Hassene Ghodbane, arises from plaintiff's fall on an interior staircase in commercial premises owned by defendant 111 John Realty Corp., and managed by defendant Braun Management, Inc. The only remaining claims in the action are against defendant Gemstar Construction Corp., which had been hired by Braun to do renovations to the premises, including to the staircase on which plaintiff fell.

Trial in the action is scheduled to begin on January 7, 2026. Gemstar now moves to preclude the testimony of plaintiff's engineering expert, Andrew Yarmus; for leave to conduct further discovery; or for leave to renew its motion for summary judgment (which this court had previously denied). (See NYSCEF No. 352.) The motion is denied.

Gemstar's basic argument on this motion is that Yarmus's CPLR 3101 (d) disclosure, filed in June 2025 (see NYSCEF No. 323) advanced a new theory of liability that was (i) inconsistent with the grounds plaintiff relied on in defeating Gemstar's summary-judgment motion, and (ii) inconsistent with deposition testimony of a witness that plaintiff had offered at summary judgment (Anastasia Pinteris). This court does not perceive an inconsistency in either respect.

In opposing Gemstar's summary-judgment motion, plaintiff argued that issues of fact existed about whether (i) Gemstar, in the course of its renovation work, had installed a stair covering over the existing cement interior staircase; (ii) that covering was dangerously shaky and wobbly; and (iii) as a result, Gemstar had created or exacerbated a dangerous condition, such that it could be liable to plaintiff. (See NYSCEF No. 262 at 3-4.) This court accepted that argument. The court held that, among other evidence, Pinteris's deposition testimony about the metal stair covering (which she testified was colored blue) was sufficient to raise a dispute of fact about whether Gemstar had installed a defective stair covering that later caused plaintiff to fall. (See Ghodbane v 111 John Realty Corp., 2021 NY Slip Op 51225[U], at *2-3 [Sup Ct, NY County 2021], affd as mod on other grounds, 210 AD3d 498 [1st Dept 2022].)

Yarmus's expert disclosure reflects that he is expected to testify that Gemstar failed to satisfy its contractual obligation to construct a safe and secure staircase on the premises. (See NYSCEF No. 323 at 7 ¶ 6.) According to the disclosure, Yarmus is expected to testify that the staircase consists of a steel frame to which the pieces of each step are fastened; and that the staircase was not safe at the time of plaintiff's fall stair because the tread of the top step of the staircase (i.e., the part of the step on which someone using the staircase would place their weight) was not properly fastened to the staircase frame. (See id. at 6-7 ¶¶ 2-4.) Yarmus's disclosure includes as an exhibit numerous photographs that he took in 2020 when inspecting the staircase at issue; those photographs show a gray-colored metal staircase. (See id. at 4-5 [description of site inspection]; see e.g. id. at 12-15 [photographs].)

Gemstar contends that Yarmus's disclosure and appended photographs are inconsistent with plaintiff's previous position because he "does not opine that Gemstar's alleged negligent placement of a blue metal covering . . . caused the staircase to become 'shaky' or 'wobbly,' or otherwise contributed to plaintiff's fall," or "mention . . . any blue metal covering," or show a blue metal covering in his photographs. (NYSCEF No. 350 at ¶ 22.) To the contrary, Gemstar says, "Yarmus seems to opine that no additional covering was ever installed." (Id. at ¶ 23.) Gemstar also asserts that Yarmus's disclosure relies on a different liability theory, namely that "Gemstar is responsible for plaintiff's alleged fall on a 'loose tread condition' due to its failure to comply with a purported (and unexplained) obligation to 7-Eleven to 'construct and furnish a safe and secure staircase.'" (Id. at ¶ 25.)

This court disagrees with Gemstar that the Yarmus disclosure (and photographs) are necessarily inconsistent with Pinteris's deposition testimony or with plaintiff's theory of liability in opposition to summary judgment. In particular, this court has a different understanding from Gemstar of the nature of that testimony and the liability theory that it supports. Gemstar contends on reply that plaintiff previously "attribut[ed] plaintiff's accident to Gemstar's improper [*2]placement of a blue metal covering over the existing steel structure." (NYSCEF No. 358 at ¶ 12 [emphasis added].) This court, on the other hand, understood Pinteris to be testifying that during Gemstar's renovation work, "a metal covering was placed on the original cement staircase." (Ghodbane, 2021 NY Slip Op 51225[U], at *3 [emphasis added].) That is, as the court understands it, the "blue metal covering" testified to by Pinteris, and the description in Yarmus's disclosure of a steel staircase with a loose top step, refer to the same thing—a metal staircase structure built on top of the existing worn-down cement steps. (See e.g. NYSCEF No. 235 at Tr. 251 [transcript of Pinteris deposition].) And Yarmus's characterization of Gemstar as having been "negligent in the construction and furnishing of the subject staircase" (NYSCEF No. 323 at 8 ¶ 7) is consistent with plaintiff's argument that Gemstar could be liable to plaintiff, notwithstanding the absence of privity, because Gemstar (assertedly) created or exacerbated a dangerous condition on the staircase.

Now, it is true, as Gemstar emphasizes, that Pinteris testified that in 2013-2014, the metal covering at issue was blue; whereas Yarmus's 2020 photographs show a gray staircase. But this discrepancy in color was not presented for the first time by Yarmus's expert disclosure. To the contrary, at Pinteris's 2018 deposition, counsel for 111 John Realty and Braun showed her photographs of the staircase that counsel had previously marked for identification in 2017. (See NYSCEF No. 235 at Tr. 139.) When asked if the photographs "accurately depicted the way the stairway looked" when she worked there, Pinteris testified that the staircase "looks gray and not blue" and that the handrail was "black, and I believe it was silver before." (Id. at Tr. 139-140.)

In other words, the possibility that Pinteris's testimony about the staircase was inaccurate—or that it was accurate but for the stairs having been painted after she stopped working on the premises—was raised as early as 2018. The parties did not brief the issue of summary judgment until 2021, nearly three years later. And because the stairs were undisputedly gray in color as early as 2017 (when the deposition photographs were first marked for identification), Yarmus's 2020 photographs of a gray-colored staircase do not create a further contradiction with Pinteris's testimony beyond what the parties already knew about in 2018.

Gemstar is free, of course, to raise these issues in cross-examining plaintiff's witnesses at trial, subject to the trial judge's evidentiary rulings. But Gemstar has not shown that Yarmus's testimony should be precluded; or that Gemstar should be able to obtain further discovery or to renew its motion for summary judgment.

Accordingly, it is

ORDERED that Gemstar's motion is denied.