Order, Supreme Court, New York County (Donna M. Mills, J.), entered June 16, 2008, which, in an action for personal injuries sustained in a fall on a staircase, insofar as appealed from, denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, affirmed, without costs.
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Friedman, Catterson, Moskowitz, Richter, JJ.
Defendants' argument that they are entitled to summary judgment on the basis of plaintiff's deposition testimony that she does not know what caused her to fall places undue reliance on an isolated portion of plaintiff's testimony (see Shechter v City of New York, 17 AD3d 124, 124-125 ; Garcia v New York City Tr. Auth., 269 AD2d 142, 142-143 ). Although plaintiff at her deposition at first testified that she did not know what caused her to fall, the transcript shows that she immediately expressed the desire to clarify that response but was cut off by her examiner. Viewed as a whole, plaintiff's testimony, including the answers she gave to her own attorney's questions as well as other portions of her main examination, is entirely consistent with her affidavit in opposition, which states that she slipped because "the steps were not completely covered by non-skid material," that is, "on the portion of the step that was not covered by non-skid material." Given defendants' failure to rebut the affidavit of plaintiff's expert opining that this aspect of the stairs's design was not compliant with the Building Code of the City of New York, the motion for summary judgment was properly denied. All concur except Catterson, J. who dissents in a memorandum as follows:
CATTERSON, J. (dissenting)
Because I believe that the plaintiff failed to provide any admissible evidence identifying the condition which caused her to fall, I respectfully dissent.
On May 3, 2005, the plaintiff, while descending the stairway leading from the lobby of 1 Chase Plaza to the subway station, slipped on the fourth step from the bottom and fell down the stairs. The plaintiff brought an action against The Chase Manhattan Bank, N.A. and JPMorgan Chase & Co., the New York City Transit Authority, the Metropolitan Transit Authority, and the City of New York to recover damages for the injuries she sustained.
On January 17, 2007, at the plaintiff's deposition, defense counsel asked the plaintiff: "Did you ever learn what caused you to slip and fall?" The plaintiff answered: "No. I don't." Defense counsel then asked: "Do you remember what foot you were stepping..." Whereupon, the plaintiff interrupted: "No, I don't. But I can come back to your question what really made me fall..." Defense counsel said: "No, I just want to know what foot you were stepping with."
After defense counsel concluded his questioning, the plaintiff's attorney showed her photographs and asked: "By looking at the pictures... what do you think might have caused you to slip?" (emphasis added). The plaintiff responded, over defense counsel's objections, "I believe it was the shiny part on the stairs."
By notice dated January 22, 2008, the defendants moved for summary judgment dismissing the complaint. Citing the plaintiff's deposition testimony, the defendants argued that plaintiff's failure to identify what caused her to fall was fatal to her case.
The plaintiff opposed the motion, arguing that defendants' negligence in failing to have non-skid treads to fully cover the stairs constituted a dangerous condition. In support of her position, she submitted her deposition testimony which stated that she "believe[d] it was the shiny part on the stairs" that "might" have caused her to slip. Plaintiff also submitted an affidavit, dated May 9, 2008, wherein she attested that she was "caused to slip and fall on the fourth step from the bottom [...] due to the fact that the steps were not completely covered by non-skid material." The plaintiff further submitted the affidavit of a licensed professional engineer who asserted, inter alia, that the treads were not in compliance with section 27-375 of the Administrative Code of the City of New York.
The motion court denied the defendants' motion. The court reasoned that there were questions of fact as to whether the plaintiff was injured as a result of the condition of the subject steps.
For the reasons set forth below, I believe that the motion court erred in denying summary judgment dismissing the plaintiff's complaint in its entirety. It is well settled that in slip and fall cases a defendant is entitled to summary judgment as a matter of law when a plaintiff provides testimony at a deposition that he/she was unable to identify the cause of the accident. Reed v. Piran Realty Corp., 30 AD3d 319, 818 N.Y.S.2d.58(1st Dept. 2006), lv. denied, 8 NY3d 801, 828 N.Y.S.2d 292, 861 N.E.2d 108 (2007); Kane v. Estia Greek Restaurant, Inc., 4 AD3d 189, 772 N.Y.S.2d 59 (1st Dept. 2004); Birman v. Birman, 8 AD3d 219, 777 N.Y.S.2d 310 (2nd Dept. 2004). While plaintiff's evidence need not positively exclude every possible cause of her fall other than alleged staircase defects, ...