Opinion
2014-06-17
Peter BOCK, Plaintiff–Appellant, v. LOUMARITA REALTY CORPORATION, etc., et al., Defendants–Respondents.
Fillmore K. Peltz, Massapequa, for appellant. Morris Duffy Alonso & Faley, LLP, New York (Iryna S. Krauchanka of counsel), for respondents.
Fillmore K. Peltz, Massapequa, for appellant.Morris Duffy Alonso & Faley, LLP, New York (Iryna S. Krauchanka of counsel), for respondents.
, J.P., FRIEDMAN, SAXE, FEINMAN, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered August 27, 2013, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 27, 2014, which, to the extent appealable, denied plaintiff's motion to renew the prior motion, unanimously dismissed, without costs, as abandoned.
Defendants made a prima facie showing of entitlement to summary judgment based upon plaintiff's testimony that he fell on a sidewalk that was slippery when wet, during a period of heavy rain, defendants' lack of prior notice of a dangerous condition, and an expert opinion that there was no defect in the area of the fall. In opposition, plaintiff failed to raise a triable issue of fact ( see e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).
The mere fact that a sidewalk is “inherently slippery” by reason of its smoothness or becomes more slippery when wet does not constitute an actionable defect ( see Waiters v. Northern Trust Co. of N.Y., 29 A.D.3d 325, 816 N.Y.S.2d 18 [1st Dept.2006]; Wasserstrom v. New York City Tr. Auth., 267 A.D.2d 36, 699 N.Y.S.2d 378 [1st Dept.1999], lv. denied94 N.Y.2d 761, 707 N.Y.S.2d 142, 728 N.E.2d 338 [2000];Phillips v. 630 McKinley Sq. Corp., 285 App.Div. 18, 135 N.Y.S.2d 272 [1st Dept.1954] ). Plaintiff's expert's finding lacked probative force and failed to raise a triable issue of fact as to the existence of a defective or dangerous condition in the absence of any assertion of a violation of a specific, applicable industry standard which contributed to the accident ( see Scivoletti v. New York Mercantile Exch., Inc., 38 A.D.3d 326, 832 N.Y.S.2d 34 [1st Dept.2007], lv. denied9 N.Y.3d 802, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007] ).
Plaintiff's conclusory claim that a violation of 6 RCNY § 2–55(a) 's provision, concerning the maximum height for removable railings separating unenclosed sidewalk cafés contributed to his injuries fails to raise a triable issue of fact ( cf. D'Amico v. Archdiocese of N.Y., 95 A.D.3d 601, 944 N.Y.S.2d 106 [1st Dept.2012] ). Likewise, plaintiff's claim, even if preserved, that the condition of the sidewalk violated Administrative Code of City of N.Y. § 19–152(a), is unavailing. He failed to establish a causal relationship between the condition of the concrete patchwork, adjacent to the location of the fall, and the accident, and his claim that granite constituted an “unapproved non-concrete material” is unsupported.