

Mermelstein v East Winds Co. (2016 NY Slip Op 01053)





Mermelstein v East Winds Co.


2016 NY Slip Op 01053


Decided on February 11, 2016


Appellate Division, First Department


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.



Decided on February 11, 2016

Sweeny, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.


209 114029/09

[*1]Edward Mermelstein, Plaintiff-Appellant,
vThe East Winds Company, also knows as East Winds Condominium, Defendant-Respondent.


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.

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 AD3d 739, 739-740 [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 AD3d 372, 373 [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 AD3d 630, 632 [1st Dept 2015]).
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 11, 2016
CLERK


