Friedman v BHL Realty Corp.

Friedman v BHL Realty Corp. 2011 NY Slip Op 02954 Decided on April 14, 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 April 14, 2011
Mazzarelli, J.P., Friedman, Acosta, DeGrasse, Román, JJ.
4791 115642/08

[*1]Robert Friedman, Plaintiff-Appellant,

v

BHL Realty Corp., Defendant-Respondent.



 
Law Office of David Ascher, New York (David Ascher of
counsel), for appellant.
Gallo Vitucci & Klar, LP, New York (Yolanda L. Ayala of
counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 11, 2010, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Even in light of the arguments raised and evidence submitted inappropriately for the first time in reply (see Azzopardi v American Blower Corp., 192 AD2d 453, 454 [1993]), defendant failed to meet its burden to show prima facie that plaintiff's cause of action has no merit. In support of its argument that there was no dangerous condition on the exterior staircase on which plaintiff fell, allegedly because of a pooling of water on a cracked step, defendant relied exclusively upon the opinion of an expert who measured the coefficient of friction of the stairs when they were dry and conceded that there is no available test to measure the friction of wet surfaces (see Pomahac v TrizecHahn 1065 Ave. of Ams., LLC, 65 AD3d 462, 466 [2009]; Styles v General Motors Corp., 20 AD3d 338, 339 [2005]).

In any event, plaintiff's expert offered opinions that conflict with those of defendant's experts, thereby precluding summary judgment.

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

ENTERED: APRIL 14, 2011

CLERK