Tuesday, October 18, 2016

Dismissal of a claim based on a fall on the stairs.

Practice point:  The Appellate Division affirmed the granting of defendants' motion for summary judgment dismissing the complaint. Defendants established prima facie that they did not cause or create the defect in the stairs that allegedly caused plaintiff to fall, and that they had no actual or constructive notice of any defect. They submitted evidence that the stairs were built in 1927 and had never been worked on thereafter, that there were no earlier reported incidents or complaints, and that no violations or citations had been issued with respect to the condition of the stairs. They also submitted their testimony that they used the stairs regularly, that no one had ever before fallen on the stairs, and that immediately after the accident they could find no defect.

In opposition, plaintiffs failed to raise an issue of fact. As to the issue of notice, the motion court was not required to consider their unsworn witness statement since the statement was the only evidence submitted on that issue. In any event, the unsworn statement is not probative of whether defendants had notice of the alleged defect.

Plaintiffs' expert's affidavit is not evidence that the stairs were out of compliance with commonly accepted safety standards or practices, as the expert did not refer to any specific safety standards or practices. Neither did the expert say that the absence of a handrail or the differential in the dimensions of the risers and treads made the stairs inherently dangerous.

Case:  Lovell v. Thompson, NY Slip Op 06736 (1st Dep't October 13, 2016)

Here is the decision.

Tomorrow's issue:  A promise to answer for another's debt.