Mermelstein v. E. Winds Co.

• Decision Date: 11 February 2016
• Citation: 136 A.D.3d 505,24 N.Y.S.3d 643
• Parties: Edward MERMELSTEIN, Plaintiff–Appellant, v. The EAST WINDS COMPANY, also knows as East Winds Condominium, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 505

24 N.Y.S.3d 643

Edward MERMELSTEIN, Plaintiff–Appellant,

v.The EAST WINDS COMPANY, also knows as East Winds Condominium, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Feb. 11, 2016.

Law Offices of Paul C. Cavaliere, New York (Paul C. Cavaliere and David De Andrade of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Joseph A.H. McGovern of counsel), for respondent.

SWEENY, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, JJ.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered December 12, 2014, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff allegedly slipped and fell on an external staircase outside of defendant's building, where he lived. Plaintiff testified that the staircase was slippery, but he did not know what caused him to fall. He also testified that he could not remember if it had rained that day, but it was misting in the evening, when he fell. After defendant moved for summary judgment, plaintiff claimed in his affidavit in opposition that the stairs were wet and slippery from rain earlier in the day, and that he slipped and fell as he descended the stairs.

Defendant made a prima facie showing of its entitlement to summary judgment by pointing to plaintiff's deposition testimony that he did not know what caused him to fall (Washington v. New York City Bd. of Educ., 95 A.D.3d 739, 739–740, 945 N.Y.S.2d 87 [1st Dept.2012] ).

Plaintiff's affidavit, which contradicted his deposition testimony, created only a feigned issue of fact, and was insufficient to defeat defendant's motion (see Telfeyan v. City of New York, 40 A.D.3d 372, 373, 836 N.Y.S.2d 71 [1st Dept.2007] ). Moreover, mere wetness on a walking surface due to rain is insufficient to raise a triable issue of fact, especially since plaintiff failed to submit any expert testimony showing that the staircase was dangerous when wet (see Ceron v. Yeshiva Univ., 126 A.D.3d 630, 632, 7 N.Y.S.3d 66 [1st Dept.2015] ).

We have considered plaintiff's remaining contentions and find them unavailing.