The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78 were read on this motion to/for JUDGMENT — SUMMARY. DECISION AND ORDER ON MOTION For the reasons that follow, the motion for summary judgment by Defendant New York City Transit Authority is granted. Background This personal injury matter arises out of a slip and fall incident on a subway station staircase. Plaintiff alleges that on June 26, 2015, while descending a staircase at the Madison Avenue and 53rd Street subway station in New York County, he slipped and fell on a step due to water and suffered injuries. Plaintiff’s Notice of Claim (a requirement before bringing a negligence action against a government entity), alleges that he fell due to the staircase step being defective in that it was “chipped, depressed, hazardous, unlevel, irregular, uneven, unsafe, loose, wobbly, cracked, improperly designed, improperly installed, holey, improperly constructed, broken, mis-leveled, misaligned and/or badly repaired” Plaintiff brings this negligence action against Defendant in its capacity as lease holder/ owner of the subway system, alleging Defendant was negligent in creating a defective condition and/or having actual and/or constructive notice of a defective condition and not resolving the condition. Defendant now post note of issue, moves for summary judgment on the grounds that the evidence submitted shows that a defective condition did not exist at the time of the Plaintiffs accident and that it did not have constructive or actual notice of such defect. In support, of this Defendant submits the Notice of Claim, Bill of Particulars, the Transit Authority Discovery Report, the Service Call Report, transcripts of Plaintiff’s testimony at the Statutory Hearing and Examination Before Trial, photographs and transcripts of Defendant’s employees, Structure Maintainer Frank Blandina, Transit Authority Cleaner Elizabeth McFadden, and Station Supervisor Akhteruzzaman Khan. Defendant also relies on Second Department cases such as Kudrina v. 82-04 Leffets Tenant Corp, 110 AD3d 963 [2nd Dept 2013] and Davis v. Sutton 136 Ad3 731 [2nd Dept 2016]. Plaintiff opposes. Discussion A party moving for summary judgment pursuant to CPLR 3212, has the high burden of establishing entitlement to judgment as a matter of law (see CPLR §3212; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). While this burden does not shift until established, in negligence actions, plaintiffs contradicting theories as to the proximate cause of the accident will be considered (see e.g. Hoovis v. Grand City 99 Cents Store, Inc., 146 AD3d 866 [2nd Dept 2017]; Mtigang v. PJ Venture HG, LLC, 126 AD3d 863 [2nd Dept 2015]; Rivera v. J. Nazzaro Partnership. L.P, 122 Ad3d 826 [2nd Dept 2014]). Once the movant establishes this burden, opposing papers will be considered for evidence that sufficiently creates questions of material fact requiring a trial (Alvarez, 68 NY2d 320). In considering opinion evidence to raise material questions of fact, the opinion evidence must be based on facts personally known to the expert or based on facts in the record assumed to be true without speculating (see e.g. Ward v. John T. Mather Mem’l Hosp. of Port Jefferson, New York, Inc., 215 A.D.3d 994 [2d Dept 2023]; see also Oboler v. City of New York, 31 AD3d 308 [1st Dept 2006]; Aetna Cas. & Sur. Co. v. Barile, 86 AD2d 362 [1st Dept 1982]; Santiago v. Burlington Coat Factory, 112 AD3d 514 [1st Dept 2013]). Here, Defendant’s reports and employee testimonies establish entitlement to judgment as a matter of law. Based on the service reports and the testimony of Defendant’s employee, Mr. Blandina, he testified that service calls involve calls/complaints made by others and that upon reviewing their records there were no complaints about the first step of the staircase. He further testified that while there was a complaint about a clogged drain at the bottom of the subject staircase, it was repaired on February 3, 2015. Mr. Bladina was also questioned by Plaintiff about a step raiser complaint. He explained that a step riser is the part between the steps, but there wasn’t any reference that this complaint was related to the first step of the staircase. Mr. Baldina also testified that a complaint dated November 2, 2014, regarding chipped nosing in that staircase was investigated and concluded to be unfounded. Further, Defendant’s employee, Elizabeth McFadden testified that she was assigned to clean the part of the staircase where Plaintiffs accident occurred and that her job also requires to report defects. Through her testimony she confirmed that based on her cleaning report and her review of the staircase after the accident, there were no defects to the staircase or step on the that day. In addition, subway station supervisor who prepared the incident report and examined the area after the accident, Mr. Khan, testified that upon inspection, he did not see any cracks or defects on the step. Thus, this Court will now consider Plaintiff’s opposition. In opposition, Plaintiff relies primary on an affidavit from an expert, a licensed engineer, Vincent Pici to allege that questions of fact exist as to whether Defendant had notice of the defect. Pici alleges examining the evidence, photographs and google view images of the entrance of the staircase two months after Plaintiff’s accident. Pici, in his opinion relying primarily on photographs, without once visiting the subject staircase, concludes that the photographs establish that the top stair was in poor condition and readily observable. Plaintiff also argues that the photograph shown to him reveal a chipped or cracked condition on the step and that Defendant had to have notice of this condition. Upon further review, this Court finds that Plaintiff has not raise a material question of fact requiring a trial. While an affidavit from an expert, may raise questions of fact, here the expert did not visit the scene, meet with Plaintiff, and relies on photographs not taken by him nor taken on the day of Plaintiff’s accident, to speculate the Defendant had notice of the defect (Ward, 215 AD3d 994; Oboler, 31 AD3d 308; Aetna Cas. & Sur. Co., 86 AD2d 362; Santiago, 112 AD3d 514). Notably, the photographs submitted by Plaintiff are unclear copies. In addition, Plaintiff’s Notice of Claim was filed on July 23, 2015 alleging that he fell due to a defect on the step. Plaintiff specifically testifies at the statutory hearing on August 25, 2015, that the step had a hole but he did not see it. Less than three months after the serving the Notice of Claim, on September 14, 2015, Plaintiff through his attorneys alleges now that he slipped on the first step of the staircase due to water. Thus Plaintiff’s opposing evidence, consisting of poor copies of photographs that do not allow for discerning details, an expert affidavit requiring speculation since the photographs he relies upon are not fairly inferable, nor recently taken or established by who they were taken, and based on Plaintiffs conflicting theories of negligence, is insufficient to raise material questions of fact that that on date of the accident, Defendant had notice or should have had notice of the alleged defect nor does it raise a material question of fact as whether a defect existed (see Ward, 215 AD3d 994). Accordingly, it is ORDERED that Defendant’s motion for summary judgment is granted. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: June 27, 2023
