OUT-OF-POSSESSION LANDLORD NOT RESPONSIBLE FOR STAIRWAY ACCIDENT WHERE PLAINTIFF CAN'T SHOW "STRUCTURAL" DEFECT

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

Case: Garcia-Rosales v. 370 Seventh Avenue Associates, LLC

Date: Oct. 6, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens accident attorney)

Comment: Accident victim loses stairway fall-down case on defense summary judgment motion. The rule is that an out-of-possession landlord (a landlord who doesn't occupy the building) is only held legally responsible for "structural" defects; things like the size, shape or design of the stairs, handrails and such. Not for things like wet stairs or stairs with garbage or "slippery stuff" on them.

Also, this accident victim had an expert ready to look at the stairs to see if there was a structural problem. But the accident victim's lawyers dropped the ball by not pressing the issue, only to raise it in opposition to the defense summary judgment motion. The Court here tells the plaintiff that it's too late now for an expert to jump in and save his stairway falldown case.

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RELATED POSTS:

CLAIMS OF PRISONER WITH ARTIFICIAL LEG AGAINST NEW YORK STATE FOR FALL DOWN STAIRWAY FAILS WHERE NO DEFECT IN STAIRWAY IS ALLEGED (Posted by Brooklyn accident attorneyGary E. Rosenberg on Oct 17, 2011)

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Order, Supreme Court, New York County (Jane S. Solomon, J.), entered July 6, 2010, which, in this personal injury action resulting from a slip and fall on a stairway in a building owned by defendant, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant made a prima facie showing of entitlement to judgment as a matter of law with evidence that it was an out‑of‑possession landlord, it was not contractually obligated to make repairs and maintain the premises, and plaintiff's accident was caused by a nonstructural defect, namely, wet and slippery stairs (see generally Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440, 906 N.Y.S.2d 528 [2010] ).

In opposition, plaintiff failed to raise an issue of fact. Although plaintiff asserted in his bill of particulars that the subject stairs violated Administrative Code of the City of New York Sec. 27-375, he failed to provide sufficient evidence to raise an issue as to whether the alleged structural defects caused his accident (compare Babich, 75 A.D.3d at 440, 906 N.Y.S.2d 528). Plaintiff's deposition testimony is bereft of any claim that his fall was caused by the alleged defects of uneven, narrow steps, low handrails, or non‑slip treads. Plaintiff's affidavit is insufficient to raise an issue of fact, since it _appears to have been tailored to avoid the consequences_ of his testimony (Gemini v. Christ, 61 A.D.3d 477, 477, 877 N.Y.S.2d 41 [2009] ). Plaintiff's expert affidavit also fails to raise an issue of fact, since it is not based on a physical inspection of the staircase (see Vazquez v. JRG Realty Corp., 81 A.D.3d 555, 917 N.Y.S.2d 562 [2011] ).

We reject plaintiff's claim that summary judgment is premature because his expert was denied the opportunity to conduct a physical inspection. The motion court, in a preliminary conference order, permitted plaintiff to have an expert engineer inspect the premises. However, plaintiff never identified an engineer or proposed a date for the inspection. Accordingly, his claim that further disclosure is needed is unpersuasive given his own inaction (see National Union Fire Ins. Co. of Pittsburgh, Pa. v. Glass Check Cashing Corp., 177 A.D.2d 419, 420, 576 N.Y.S.2d 260 [1991] ).

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