Opinion
6668 Index 301361/12
05-24-2018
Oliver JOHNSON, Plaintiff–Appellant, v. 675 COSTER STREET HOUSING DEVELOPMENT FUND, et al., Defendants–Respondents.
Parker Waichman LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains (Jonathan W. Greisman of counsel), for respondents.
Parker Waichman LLP, Port Washington (Jay L.T. Breakstone of counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains (Jonathan W. Greisman of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Mazzarelli, Kapnick, Kahn, JJ.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 24, 2016, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff identified the cause of his fall on stairs in a building owned and managed by defendants sufficiently to withstand summary judgment. He was not required to identify at the time of the accident "exactly where [he] fell and the precise condition that caused [him] to fall" ( Tomaino v. 209 E. 84th St. Corp., 72 A.D.3d 460, 461, 900 N.Y.S.2d 245 [1st Dept. 2010] ). He identified the location of his fall at his deposition. Plaintiff also explained that it was the "concave" shape of the steps that caused him to slip. This testimony was corroborated by plaintiff's expert, who opined that the stairs were dangerously slippery and were disproportionately worn in the middle, creating an unsafe "inward sloping condition" (see Berr v. Grant, 149 A.D.3d 536, 537, 52 N.Y.S.3d 352 [1st Dept. 2017] ). Plaintiff's expert's opinion was properly considered, although it was not timely disclosed, since there was no showing of prejudice to defendants (see Yampolskiy v. Baron, 150 A.D.3d 795, 795–96, 53 N.Y.S.3d 677 [2d Dept. 2017] ; Ramsen A. v. New York City Hous. Auth., 112 A.D.3d 439, 976 N.Y.S.2d 73 [1st Dept. 2013] ).
Plaintiff's evidence of the cause of his fall is also sufficient to raise issues of fact as to the existence of a defective condition. While it is difficult to discern a concave or sloping condition in the photographs in the record, the photographs are not sufficiently clear to be conclusive.
The record also presents issues of fact as to defendants' notice of the alleged defects. Inconsistently worn and slippery steps are not latent defects and do not appear overnight. In addition, defendants submitted evidence showing that they had an opportunity to observe the defects. The building superintendent informally inspected the stairs at least three times a week during cleaning. Thus, if the defects are found to exist, it will be reasonable to infer that defendants had constructive notice of them (see Garcia v. New York City Tr. Auth., 269 A.D.2d 142, 703 N.Y.S.2d 4 [1st Dept. 2000] ).