Sarmiento v. C & E Associates

• Decision Date: 29 May 2007
• Docket Number: 368.
• Citation: 40 A.D.3d 524,837 N.Y.S.2d 57,2007 NY Slip Op 04548
• Parties: JORGE SARMIENTO et al., Respondents, v. C & E ASSOCIATES, Appellant.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 524

837 N.Y.S.2d 57

2007 NY Slip Op 04548

JORGE SARMIENTO et al., Respondents, v. C & E ASSOCIATES, Appellant.

368.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 29, 2007.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 11, 2006, which denied defendant's motion for summary judgment, unanimously modified, on the law and the facts, to the extent of granting leave to renew the motion in accordance with the decision herein, and otherwise affirmed, without costs.

In this action for personal injuries, plaintiff Jorge Sarmiento alleges that he slipped and fell while descending an interior staircase in his residential building, which is owned by defendant. It was raining on the day of the accident, and although Mr. Sarmiento testified that he did not see any water on the stairs prior to slipping, both he and his wife observed water on the stairs between the second and first floor landings after his fall.

Plaintiffs offered multiple theories of liability during the course of this lawsuit. In the complaint, they alleged that defendant was negligent in permitting a dangerous condition on the stairs, to wit, the injured plaintiff "was caused to fall because of a broken, uneven, cracked, raised and defective, dangerous and otherwise hazardous condition." In their bill of particulars, plaintiffs alleged not only that the stairs were defective, but also that the lighting was inadequate. Finally, in his deposition, Mr. Sarmiento testified that he slipped due to the wet, slippery condition on the stairs.

Defendant moved for summary judgment, arguing a lack of actual or constructive notice of the water condition. In response, plaintiffs submitted an engineer's expert affidavit, which incorporated each of their earlier theories. Upon inspection of the stairs nine months after the accident, the engineer gave his opinion that the stairs were in an "unsafe condition" because they were rounded and chipped, and were made of marble; because they did not have a nonskid surface, as required by the Building Code, and did not meet the minimum coefficient of friction standard; and because this dangerous condition was exacerbated by the water on the stairs and inadequate lighting.

Supreme Court rejected plaintiffs' theory of a dangerous condition resulting from water on the stairs, due to the lack of actual or constructive notice, but found that the engineer's affidavit raised an inference that the alleged defects in the stairs and lighting conditions "may have been a significant factor" in contributing to this accident.

We find that although many of plaintiffs' theories of liability lack merit, the order should be affirmed since a triable issue exists as to one of their statutory claims. Initially, the motion court properly found that defendant had demonstrated a lack of actual or constructive notice of the wet condition as a matter of law. However, it erred in finding that plaintiffs had raised a triable issue regarding the alleged inadequacy of the lighting in the stairwell. Even assuming that the engineer's affidavit raised a triable issue with respect to the actual lighting conditions, this theory must fail because Mr. Sarmiento's deposition testimony eliminated any possibility that the lighting played any causal role in the accident. When specifically asked at his deposition whether "there was enough lighting" in the area where the accident occurred, he responded, "yes, there was lighting." In addition, plaintiffs both affirmatively testified that the water on the stairs caused his fall. In short, Mr. Sarmiento testified that he slipped because of the wet stairs, not because the lighting was inadequate (see Weiss v Gerard Owners Corp., 22 AD3d 406, 407 [2005] [affidavit alleging inadequate lighting disregarded where it contradicted plaintiff's testimony that he could see the floor]). Thus, whether the lighting was adequate or not, it was not a proximate cause of this accident.^*

The motion court further erred in finding a triable issue of fact as to the alleged defective condition of the stairway itself. Although the engineer's affidavit referenced the "ASTM Standard F609-96" in defining the "Static Coefficient of Friction" (SCOF) ratio, it did not reference any specific standard in asserting that a "minimum SCOF of 0.5 is the commonly accepted value for a non-slip (non-skid) surface" (see Jenkins v New York City Hous. Auth., 11 AD3d 358, 360 [2004] [no triable issue where expert did not identify the basis for the 0.5 coefficient-of-friction value he utilized as a standard]).

In addition, the expert's affidavit makes clear that his inspection of the stairs occurred nine months after the accident, and it only vaguely asserts that he measured the SCOF "at various locations in the proximal area of the accident on several treads." In the absence of any evidence that the specific location of this accident—i.e., the second step of the stairwell in question—was tested and failed to meet the purported industry standard of 0.5 (Suarez v D&C Mgt. Assoc., 284 AD2d 706, 707 [2001] [expert failed to reference industry standard, failed to state where in parking lot he made his observations and measurements, and did not assert he tested area where plaintiff fell]), and that such condition existed on the date of the accident (Santiago v United Artists Communications, 263 AD2d 407, 408 [1999] [plaintiff's expert failed to state when inspection conducted and whether condition was same at time of...