Friedman v. BHL Realty Corp.

Appellate Division of the Supreme Court of New York

Friedman v. BHL Realty Corp.

83 A.D.3d 510, 922 N.Y.S.2d 293

Appellate Division of the Supreme Court of the State of New York·Decided April 14, 2011·Published·Cited by 4 cases

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 11, 2010, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Even in light of the arguments raised and evidence submitted inappropriately for the first time in reply (see Azzopardi v American Blower Corp., 192 AD2d 453, 454 [1993]), defendant failed to meet its burden to show prima facie that plaintiffs cause of action has no merit. In support of its argument that there was no dangerous condition on the exterior staircase on which plaintiff fell, allegedly because of a pooling of water on a cracked step, defendant relied exclusively upon the opinion of an expert who measured the coefficient of friction of the stairs when they were dry and conceded that there is no available test to measure the friction of wet surfaces (see Pomahac v TrizecHahn 1065 Ave. of Ams., LLC, 65 AD3d 462, 466 [2009]; Styles v General Motors Corp., 20 AD3d 338, 339 [2005]).

In any event, plaintiffs expert offered opinions that conflict with those of defendant’s experts, thereby precluding summary judgment. Concur—Mazzarelli, J.P., Friedman, Acosta, DeGrasse and Román, JJ.

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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 11, 2010, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Even in light of the arguments raised and evidence submitted inappropriately for the first time in reply (see Azzopardi v American Blower Corp., 192 AD2d 453, 454 [1993]), defendant failed to meet its burden to show prima facie that plaintiffs cause of action has no merit. In support of its argument that there was no dangerous condition on the exterior staircase on which plaintiff fell, allegedly because of a pooling of water on a cracked step, defendant relied exclusively upon the opinion of an expert who measured the coefficient of friction of the stairs when they were dry and conceded that there is no available test to measure the friction of wet surfaces (see Pomahac v TrizecHahn 1065 Ave. of Ams., LLC, 65 AD3d 462, 466 [2009]; Styles v General Motors Corp., 20 AD3d 338, 339 [2005]).

In any event, plaintiffs expert offered opinions that conflict with those of defendant’s experts, thereby precluding summary judgment. Concur—Mazzarelli, J.P., Friedman, Acosta, DeGrasse and Román, JJ.

Friedman v. BHL Realty Corp., 83 A.D.3d 510, 922 N.Y.S.2d 293 (N.Y. Ct. App. 2011).

Pincite

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Opinion

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