Opinion
14391 Index No. 23694/17E Case No.2021–01548
10-14-2021
Alexander DONKOR, Plaintiff–Appellant, v. FIRST GHANA SEVENTH–DAY ADVENTIST CHURCH et al., Defendants–Respondents.
Law Offices of John P. Grill, P.C., Carmel (John P. Grill of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for respondents.
Law Offices of John P. Grill, P.C., Carmel (John P. Grill of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for respondents.
Kapnick, J.P., Singh, Shulman, Pitt, Higgitt, JJ.
Order, Supreme Court, Bronx County (Adrian N. Armstrong, J.), entered May 3, 2021, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law in this action where plaintiff was injured when he slipped and fell while descending a staircase inside of defendants’ church. Defendants presented deposition testimony from their secretary that defendants did not have any prior complaints about the condition of the staircase, and from plaintiff, who testified that he had never complained to anyone about the alleged defective staircase. This satisfied defendants’ prima facie burden that they did not create or have notice of an unsafe condition on the staircase (see Navarro v. H. Heiden, LLC, 115 A.D.3d 564, 982 N.Y.S.2d 456 [1st Dept. 2014] ; Cruz v. Montefiore Med. Ctr., 45 A.D.3d 355, 845 N.Y.S.2d 279 [1st Dept. 2007] ).
In opposition, plaintiff failed to raise an issue of fact. His expert's opinion that the cause of plaintiff's fall was worn carpeting on the staircase is speculative, because plaintiff was unable to identify the part of the carpet on which his foot slipped (see Wong v. 15 Monroe Realty Inc., 194 A.D.3d 534, 149 N.Y.S.3d 20 [1st Dept. 2021] ; Goldfischer v. Great Atl. & Pac. Tea Co., Inc., 63 A.D.3d 575, 880 N.Y.S.2d 485 [1st Dept. 2009] ). Plaintiff's assertion, made for the first time in his affidavit opposing summary judgment, that his toe caught on bunched up carpet, contradicts his prior deposition testimony that he did not see what caused him to fall (see O'Connell v. Macy's Corporate Servs., Inc., 154 A.D.3d 628, 629, 62 N.Y.S.3d 791 [1st Dept. 2017] ). Moreover, the provisions of the Administrative Code of the City of New York relied upon by plaintiff's expert were inapplicable, as these were not "interior stairs" as defined in the Code.