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Deutsch v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 26, 2010

ISRAEL DEUTSCH, ET AL., PLAINTIFFS-APPELLANTS,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS, THE NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered July 10, 2008, which, in an action for personal injuries sustained in a fall on steps leading down to a subway station, insofar as appealable, denied plaintiff's motion to renew defendant-respondent Transit Authority's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

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.

Tom, J.P., Saxe, Nardelli, Renwick, Freedman, JJ.

116105/03

Assuming the report of plaintiff's expert should have been considered by the motion court on plaintiff's motion to renew, the report, which was based on an inspection of the steps conducted almost six years after the accident, does not raise an issue of fact as to causation. Plaintiff testified that he does not know why he fell, and the expert's opinion that plaintiff fell because of dangerously uneven riser heights is speculative in the absence of evidence tending to show the existence of the alleged uneven risers at the time plaintiff fell (see Telfeyan v City of New York, 40 AD3d 372, 373 [2007]; Batista v New York City Tr. Auth., 66 AD3d 433 [2009]; Kane v Estia Greek Rest., 4 AD3d 189 [2004]). Nor does plaintiff show how further disclosure might reveal evidence sufficient to raise an issue of fact as to whether he fell because of a defect in the steps (see Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 163-164 [1980]).

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

20100126

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