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Budano v. Gurdon

Supreme Court of New York, First Department

October 22, 2013

Joseph Budano, Plaintiff-Appellant,
v.
Andrew Gurdon, Defendant-Respondent.

O'Hare Parnagian LLP, New York (Robert A. O'Hare, Jr. of counsel), for appellant.

Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for respondent.

Gonzalez, P.J., Tom, Saxe, Manzanet-Daniels, Gische, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered June 28, 2012, which, in an action for personal injuries allegedly sustained when plaintiff slipped and fell as he ascended the stairs in defendant's building, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established his entitlement to judgment as a matter of law. Defendant submitted, inter alia, photographs of the subject step and staircase, showing that the claimed defect, a worn and slippery step, was too trivial to be actionable (see Cintron v New York City Tr. Auth., 77 A.D.3d 410, 411 [1st Dept 2010]; Gaud v Markham, 307 A.D.2d 845 [1st Dept 2003]; Outlaw v Citibank, N.A., 35 A.D.3d 564, 565 [2d Dept 2006]). Defendant also demonstrated that there were a lack of prior complaints or injuries relating to the step (see Santiago v United Artists Communications, 263 A.D.2d 407 [1st Dept 1999]).

In opposition, plaintiff failed to raise a triable issue of fact. His affidavit, wherein he states that the loose handrail and inconsistent stair dimensions contributed to his inability to prevent his fall, was inconsistent with his testimony that he simply slipped (see Gemini v Christ, 61 A.D.3d 477 [1st Dept 2009]). Moreover, the findings of plaintiff's expert concerning uneven riser heights and a loose handrail were insufficient to connect plaintiff's fall to any purported defect in the risers (see Raghu v New York City Hous. Auth., 72 A.D.3d 480, 482 [1st Dept 2010]).


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