Opinion
14743 Index No. 157345/18 Case No. 2020–04019
12-02-2021
Pearl DENSTMAN, Plaintiff–Appellant, v. MANHATTAN EYE, EAR & THROAT HOSPITAL et al., Defendants–Respondents.
Michael H. Zhu, PC, New York (Michael H. Zhu of counsel), for appellant. Barbiero, Bisch & O'Connor, LLP, Central Islip (Joseph M. O'Connor of counsel), for respondents.
Michael H. Zhu, PC, New York (Michael H. Zhu of counsel), for appellant.
Barbiero, Bisch & O'Connor, LLP, Central Islip (Joseph M. O'Connor of counsel), for respondents.
Gische, J.P., Kapnick, Kern, Gesmer, Kennedy, JJ.
Judgment, Supreme Court, New York County (Arlene P. Bluth, J.), entered February 17, 2021, dismissing the complaint, unanimously affirmed, without costs.
Defendants’ evidence, both testimonial and photographic, established that the final step of the staircase on which plaintiff tripped was open and obvious and not inherently dangerous (see Hall v. New Way Remodeling, Inc., 168 A.D.3d 620, 92 N.Y.S.3d 39 [1st Dept. 2019] ; Franchini v. American Legion Post, 107 A.D.3d 432, 967 N.Y.S.2d 48 [1st Dept. 2013] ). Defendants’ expert's report and affidavit also established that the stairs were in a safe condition and did not violate any applicable New York City Building Code requirements (see Porto v. Golden Seahorse LLC, 177 A.D.3d 540, 114 N.Y.S.3d 307 [1st Dept. 2019] ; Hernandez v. Callen, 134 A.D.3d 654, 21 N.Y.S.3d 621 [1st Dept. 2015] ).
Plaintiff's opposition failed to raise an issue of fact. Plaintiff's expert's opinion that the step caused optical confusion is belied by the photographs in the record, which show that the final step and the landing were of different, contrasting colors (see Hall, 168 A.D.3d at 620, 92 N.Y.S.3d 39 ; Namm v. Levy, 172 A.D.3d 507, 98 N.Y.S.3d 426 [1st Dept. 2019] ). The expert's assertion that the lack of handrails at the last step constituted a dangerous condition was conclusory, as it was not supported by reference to any applicable safety standards or practices (see Hernandez, 134 A.D.3d at 654, 21 N.Y.S.3d 621 ; see also Verderese v. 3225 Realty Corp., 147 A.D.3d 637, 638, 46 N.Y.S.3d 873 [1st Dept. 2017] ).
We have considered plaintiff's remaining arguments and find them unavailing.