Ashton v. EQR Riverside A, LLC

Appellate Division of the Supreme Court of New York

Ashton v. EQR Riverside A, LLC

132 A.D.3d 599, 19 N.Y.S.3d 50

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 29, 2015

Docket16019 570721/12 3000438/10

StatusPublished

This text of 132 A.D.3d 599 (Ashton v. EQR Riverside A, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ashton v. EQR Riverside A, LLC, 132 A.D.3d 599, 19 N.Y.S.3d 50 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, Appellate Term, First Department, entered on or about November 14, 2013, which, inter alia, reversed an order and judgment (one paper), Civil Court, New York County (Ann E. O’Shea, J.), entered December 5, 2012, after a nonjury trial, awarding plaintiff damages, directed judgment in favor of defendants, and dismissed the complaint, unanimously affirmed, without costs.

It was undisputed that defendants did not have actual or constructive notice of the height differential between the recessed well, which was covered by carpeting, and the surrounding marble tile, which caused plaintiff’s trip and fall. The only evidence that defendants affirmatively created the condition by gluing the carpet to the floor of the well, failing to install a drainage system under the well, and improperly maintaining the carpet, causing it to become matted, was the testimony of plaintiff’s expert. However, his conclusion was speculative, since he did not examine the carpet that was present on the day of the accident and there was no evidence that the replacement carpet was identical. Plaintiff’s expert also failed to cite any industry standard or authoritative treatise supporting his opinion concerning proper maintenance and design of the area (see Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9 [2005]; Hotaling v City of New York, 55 AD3d 396, 398 [1st Dept 2008], affd 12 NY3d 862 [2009]).

Concur—Gonzalez, P.J., Friedman, Gische and Kapnick, JJ.

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Order, Supreme Court, Appellate Term, First Department, entered on or about November 14, 2013, which, inter alia, reversed an order and judgment (one paper), Civil Court, New York County (Ann E. O’Shea, J.), entered December 5, 2012, after a nonjury trial, awarding plaintiff damages, directed judgment in favor of defendants, and dismissed the complaint, unanimously affirmed, without costs.

It was undisputed that defendants did not have actual or constructive notice of the height differential between the recessed well, which was covered by carpeting, and the surrounding marble tile, which caused plaintiff’s trip and fall. The only evidence that defendants affirmatively created the condition by gluing the carpet to the floor of the well, failing to install a drainage system under the well, and improperly maintaining the carpet, causing it to become matted, was the testimony of plaintiff’s expert. However, his conclusion was speculative, since he did not examine the carpet that was present on the day of the accident and there was no evidence that the replacement carpet was identical. Plaintiff’s expert also failed to cite any industry standard or authoritative treatise supporting his opinion concerning proper maintenance and design of the area (see Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 8-9 [2005]; Hotaling v City of New York, 55 AD3d 396, 398 [1st Dept 2008], affd 12 NY3d 862 [2009]).

Concur—Gonzalez, P.J., Friedman, Gische and Kapnick, JJ.

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Bluebook (online)

132 A.D.3d 599, 19 N.Y.S.3d 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashton-v-eqr-riverside-a-llc-nyappdiv-2015.

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