Brunson v Barretto

[*1] Brunson v Barretto 2009 NY Slip Op 50521(U) [23 Misc 3d 126(A)] Decided on March 26, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 26, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570400/08.

Kirk Brunson, Plaintiff-Appellant,

against

Lou Barretto, individually and doing business as American Dream, Defendant, -and- Ace 318 Corporation, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Ernest J. Cavallo, J.), entered June 3, 2008, which granted the motion of defendant Ace 318 Corporation for summary judgment dismissing the complaint as against it.

Per Curiam.

Order (Ernest J. Cavallo, J.), entered June 3, 2008, affirmed, with $10 costs.

Plaintiff commenced this action in 2002, seeking damages for personal injuries sustained when he was allegedly assaulted by defendant Barretto, a tenant in a building owned by defendant Ace 318 Corporation (Ace). Plaintiff testified at his deposition that Barretto "pushed" him, causing him to fall down a flight of stairs, and thereafter kicked him. In 2006, plaintiff successfully sought leave to amend his complaint to allege that the staircase was defective. Upon completion of discovery, Ace moved for summary judgment on the issue of liability. In opposition, plaintiff submitted an unsigned report of an engineer, who averred, in conclusory fashion, that the stair riser heights and tread widths "varied," allegedly in violation of unspecified Building Code provisions.

Contrary to plaintiff's contention, the earlier determination granting him leave to amend his complaint was not "law of the case" and does not preclude defendant from establishing, on a motion for summary judgment, the absence of liability as a matter of law (see James v R & G Hacking Corp., 39 AD3d 385 [2007], lv denied 9 NY3d 814 [2007]). Turning to the merits, even assuming that any Building Code provisions were violated, plaintiff failed to present any evidence establishing a causal connection between his fall and the defects in the staircase alleged to have existed at the time of the incident (see Plowden v Stevens Partners, [*2]LLC., 45 AD3d 659 [2007]; Telefeyan v City of New York, 40 AD3d 372 [2007]). Plaintiff's statement, in opposition to the motion, that he is now "unclear" as to what caused him to fall is contradicted by his own deposition testimony and can only be considered to have been tailored to avoid the consequences of his earlier testimony (see Fernandez v VLA Realty, LLC., 45 AD3d 391 [2007]).

We have considered plaintiff's remaining arguments and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 26, 2009