Mermelstein v. East Winds Co.

136 A.D.3d 505, 24 N.Y.S.3d 643

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2016
• Docket: 209 114029/09
• Status: Published

Opinion

Order, Supreme Court, New York County (Joan A. Madden, J.), entered December 12, 2014, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff allegedly slipped and fell on an external staircase outside of defendant’s building, where he lived. Plaintiff testified that the staircase was slippery, but he did not know what caused him to fall. He also testified that he could not remember if it had rained that day, but it was misting in the evening, when he fell. After defendant moved for summary judgment, plaintiff claimed in his affidavit in opposition that the stairs were wet and slippery from rain earlier in the day, and that he slipped and fell as he descended the stairs.

Defendant made a prima facie showing of its entitlement to summary judgment by pointing to plaintiff’s deposition testimony that he did not know what caused him to fall (Washington v New York City Bd. of Educ., 95 AD3d 739, 739-740 [1st Dept 2012]).

Plaintiff’s affidavit, which contradicted his deposition testimony, created only a feigned issue of fact, and was insufficient to defeat defendant’s motion (see Telfeyan v City of New York, 40 AD3d 372, 373 [1st Dept 2007]). Moreover, mere wetness on a walking surface due to rain is insufficient to raise a triable issue of fact, especially since plaintiff failed to submit any expert testimony showing that the staircase was danger ous when wet (see Ceron v Yeshiva Univ., 126 AD3d 630, 632 [1st Dept 2015]).

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Renwick, Manzanet-Daniels and Kapnick, JJ.