Singh v Actors Equity Holding Corp.

Singh v Actors Equity Holding Corp. 2011 NY Slip Op 07909 Decided on November 10, 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 November 10, 2011
Tom, J.P., Andrias, Acosta, Freedman, Richter, JJ.
5953 114166/05

[*1]Harbhajan Singh, formerly known as Bhajan Rakkar, Plaintiff-Appellant,

v

Actors Equity Holding Corporation, et al., Defendants-Respondents.




Law Offices of Neil Kalra, P.C., Forest Hills (Neil Kalra of
counsel), for appellant.
Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Mark Alan Taustine of counsel), for respondents.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 23, 2010, which, in this action for personal injuries sustained when plaintiff allegedly tripped on a bent piece of metal nosing and fell down a flight of stairs in a building owned and managed by defendants, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's argument that summary judgment should not have been granted because defendants failed to include signed, sworn copies of the deposition transcripts, is raised for the first time on appeal and thus, is precluded from review (Ta-Chotani v Doubleclick, Inc., 276 AD2d 313 [2000]). Were we to consider the argument, we would find that the signed, sworn documents were in defendants' possession and could have been provided to the motion court had defendants been notified of the omission. Moreover, the deposition transcripts are admissible as plaintiff's own admission since the transcripts had been certified as accurate by the court reporter (Morchik v Trinity School, 257 AD2d 534, 536 [1999]).

Dismissal of the complaint was proper since there are no triable issues as to whether defendants created or had notice of any purported defect to the subject stair. Plaintiff did not see the alleged defect and there had been no complaints of it. Plaintiff's affidavit submitted in opposition to the motion fails to raise a triable issue of fact as it was not consistent with his deposition testimony (see Telfeyan v City of New York, 40 AD3d 372, 373 [2007]). Furthermore, [*2]plaintiff's expert affidavit fails to raise an issue as to whether defendants had constructive notice of the defect since the expert's observations occurred almost two and a half years after the accident (see e.g. Glover v New York City Tr. Auth., 60 AD2d 587, 588 [2009]).

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

ENTERED: NOVEMBER 10, 2011

CLERK