Suero v. Academy

• Decision Date: 05 December 2019
• Docket Number: Index 301272/15,10499
• Citation: 114 N.Y.S.3d 67,178 A.D.3d 460
• Parties: Elvis SUERO, Plaintiff–Appellant, v. Villa Maria ACADEMY, Defendant–Respondent, The Archdiocese of Notre Dame, Defendant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 460

114 N.Y.S.3d 67

Elvis SUERO, Plaintiff–Appellant,

v. Villa Maria ACADEMY, Defendant–Respondent,The Archdiocese of Notre Dame, Defendant.

10499

Index 301272/15

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

ENTERED: DECEMBER 5, 2019

Levine & Gilbert, New York (Harvey A. Levine of counsel), for appellant.

Connell Foley LLP, New York (Brian P. Morrissey of counsel), for respondent.

Richter, J.P., Gische, Webber, Gesmer, JJ.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about January 31, 2019, which granted the motion of defendant Villa Maria Academy (VMA) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

VMA established prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that he was injured when he slipped and fell while descending an exterior stairway that led to a classroom in the basement of VMA's building. VMA submitted evidence, including an expert's report, showing that no dangerous condition existed on the premises; the stairwell met all applicable building code requirements and tested above the industry standard to qualify as a highly slip-resistant surface (see Ceron v. Yeshiva Univ. , 126 A.D.3d 630, 631–632, 7 N.Y.S.3d 66 [1st Dept. 2015] ).

In opposition, plaintiff failed to raise a triable issue of fact. While plaintiff testified that it was not raining when he fell, but it had rained earlier in the day, "mere wetness on a walking surface due to rain is insufficient to raise a triable issue of fact" ( Mermelstein v. East Winds Co. , 136 A.D.3d 505, 505, 24 N.Y.S.3d 643 [1st Dept. 2016] ). Furthermore, the opinions of plaintiff's expert failed to raise an issue of fact (see Budano v. Gurdon , 110 A.D.3d 543, 973 N.Y.S.2d 175 [1st Dept. 2013] ). The expert did not conduct any wet dynamic slip-resistance testing on the stairwell. He opined that the stairwell violated a code provision that is inapplicable to the stairwell (see Hernandez v. Callen , 134 A.D.3d 654, 21 N.Y.S.3d 621 [1st Dept. 2015] ). Plaintiff's expert's contention that the varying stair heights created an unbalanced condition is also unavailing. Plaintiff's expert failed to provide any engineering standard to support his contention that such a minor height differential would create a dangerous condition (see Lovell v. Thompson , 143 A.D.3d 511, 39 N.Y.S.3d 420 [1st Dept. 2016] ). Notably, plaintiff never suggested that any height differential...