Garcia-Rosales v 370 Seventh Ave. Assoc., LLC

Garcia-Rosales v 370 Seventh Ave. Assoc., LLC 2011 NY Slip Op 06976 Decided on October 6, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 6, 2011
Tom, J.P., Saxe, DeGrasse, Freedman, Román, JJ.
5633 114863/07 590723/08

[*1]Ubaldo Garcia-Rosales, Plaintiff-Appellant,

v

370 Seventh Avenue Associates, LLC, Defendant-Respondent. [And A Third-Party Action]



 
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for
appellant.
Farber, Brocks & Zane, LLP, Mineola (Tracy L. Frankel of
counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered July 6, 2010, which, in this personal injury action resulting from a slip and fall on a stairway in a building owned by defendant, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant made a prima facie showing of entitlement to judgment as a matter of law with evidence that it was an out-of-possession landlord, it was not contractually obligated to make repairs and maintain the premises, and plaintiff's accident was caused by a nonstructural defect, namely, wet and slippery stairs (see generally Babich v R.G.T. Rest. Corp., 75 AD3d 439, 440 [2010]).

In opposition, plaintiff failed to raise an issue of fact.
Although plaintiff asserted in his bill of particulars that the subject stairs violated Administrative Code of the City of New § 27-375, he failed to provide sufficient evidence to raise an issue as to whether the alleged structural defects caused his accident (compare Babich, 75 AD3d at 440). Plaintiff's deposition testimony is bereft of any claim that his fall was caused by the alleged defects of uneven, narrow steps, low handrails, or non-slip treads. Plaintiff's affidavit is insufficient to raise an issue of fact, since it "appears to have been tailored to avoid the consequences" of his testimony (Gemini v Christ, 61 AD3d 477, 477 [2009]). Plaintiff's expert affidavit also fails to raise an issue of fact, since it is not based on a physical inspection of the staircase (see Vazquez v JRG Realty Corp., 81 AD3d 555 [2011]).

We reject plaintiff's claim that summary judgment is premature because his expert was denied the opportunity to conduct a physical inspection. The motion court, in a preliminary conference order, permitted plaintiff to have an expert engineer inspect the premises. However, plaintiff never identified an engineer or proposed a date for the inspection. Accordingly, his [*2]claim that further disclosure is needed is unpersuasive given his own inaction (see National Union Fire Ins. Co. of Pittsburgh, Pa. v Glass Check Cashing Corp., 177 AD2d 419, 420 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 6, 2011

CLERK