Luis Carrion, Appellant,v.John Faulkner,, et al., Respondents.BriefN.Y.April 26, 2016Bronx County Clerk’s Index No. 18070/06 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT LUIS CARRION, Plaintiff-Appellant, against JOHN FAULKNER, individually and doing business as FALCON MEWS ASSOCIATES and FALCON MEWS ASSOCIATES, Defendants-Respondents. >> >> To Be Argued By: Arnold E. DiJoseph, III BRIEF FOR PLAINTIFF-APPELLANT ALONSO KRANGLE, LLP Attorneys for Plaintiff-Appellant ARNOLD E. DIJOSEPH, P.C. Appellate Counsel 50 Broadway, Suite 1000 New York, New York 10004 212-344-7858 adijoseph@adjlaw.com Printed on Recycled Paper Of Counsel: Arnold E. DiJoseph, III i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................ ii BRIEF FOR PLAINTIFF-APPELLANT ......................................................................... 1 THE NATURE OF THE ACTION AND APPEAL ......................................................... 1 THE RELEVANT FACTS ............................................................................................... 2 Plaintiff’s Highly Qualified Licensed Professional Engineer ................................... 8 ARGUMENT PLAINTIFF’S UNEQUIVOCAL EBT TESTIMONY AND AFFIDAVIT, THE COMPELLING PHOTOGRAPHIC EVIDENCE AND THE AMPLY SUPPORTED OPINIONS OF PLAINTIFF’S ENGINEERING EXPERT, PLAINTIFF DEMONSTRATED THE EXISTENCE OF TRIABLE ISSUES OF FACT WITH RESPECT TO DEFENDANTS LIABILITY REQUIRED DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT TO BE DENIED ..... 12 Preliminary ............................................................................................................ 12 The general legal principles applicable to a motion for summary judgment that were ignored by the court below .................................................... 13 As To Premises Liability Cases ............................................................................ 16 As to Notice Generally.......................................................................................... 18 As to Actual Notice ............................................................................................... 19 As to Constructive Notice ..................................................................................... 20 Photographic evidence as proof of constructive notice ........................................ 21 The burden of proof imposed on a defendant moving for summary judgment in a premises case with respect to the issue of notice ............................................... 23 As for Plaintiff’s Burden with Respect to Causation ............................................ 24 The accident analysis and professional opinion of plaintiff’s highly qualified engineering and safety expert precluded summary judgment............................... 26 CONCLUSION ............................................................................................................... 33 ii TABLE OF AUTHORITIES Page Cases Aetna Cas. & Sure. Co., 86 A.D.2d 362, 450 N.Y.S.2d 10 [1 st Dept. 1982] .................... 27 Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986) ............................ 16 Atkins v. Francesca Realty Associates, 238 A.D.2d 457, 657 N.Y.S.2d 927 [2d Dept. 1997] ................................................................................................................. 22 Avacato v. Mount Sinai Medical Center, 277 A.D.2d 32 (1 st Dept. 2000)....................... 26 Babich v. R.G.T. Restaurant Corp., 75 A.D.3d 439, 906 N.Y.S.2d 528, (1st Dept, 2010).............................................................................................................................. 26 Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 (1976).............................................. 16 Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717 [1978] ............................ 19, 20, 22 Beecher Greenman Constr. Corp. v. Incorporated Vil. of Northport, 209 A.D.2d 565, 619 N.Y.S.2d 293 (2d Dept. 1994) ........................................................... 17 Berkowitz v. Prudential Savings Bank, 269 App. Div. 988, 58 N.Y.S.2d 280 [2d Dept. 1945].............................................................................................................................. 18 Bordonaro v. Bank of Blaisdell, 285 N.Y. 606, 33 N.E.2d 541 [1941] ............................ 18 Brown v. City of New York, 63 A.D.2d 635, 405 N.Y.S.2d 253 (1st Dept. 1978), affirmed 47 N.Y.2d 927, 393 N.E.2d 486, 419 N.Y.S.2d 491 (1979) .......................... 30 Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544 ........................................................... 24 Burke v. Wegman's Food Markets, Inc., 1 Misc.2d 130, 146 N.Y.S.2d 556, [N.Y. Sup. 1955].............................................................................................................................. 18 Consolidated Edison Company of New York, Inc. v. Jet Asphalt Corporation, 132 A.D.2d 296, 522 N.Y.S.2d 124 (1st Dept. 1987) .............................. 18 Cooper v. St. Vincent’s Hosp., 290 A.D.2d 358 (1 st Dept. 2002) .................................... 26 Decision Concepts, Inc. v. Citibank, N.A., 91 A.D.2d 965, 458 N.Y.S.2d 586 (1st Dept. 1983) .................................................................................................................... 14 iii DeGiacomo v. Westchester County Healthcare Corp., 295 A.D.2d 395, 743 N.Y.S.2d 548 [2d Dept. 2002] ...................................................................................................... 22 Dellert v. Kramer, 280 A.D.2d 438 (1 st Dept. 2001) ........................................................ 26 DeMarrais v. Swift, 283 A.D.2d 411, 724 N.Y.S.2d 77 (2d Dept. 2001)......................... 17 Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166 (1989) .......... 17 DiMenna & Sons, Inc. v. City of New York, 301 N.Y. 118, 92 N.E.2d 918 (1950) ........ 13 Dougherty v. Milliken, 163 N.Y. 527, 57 N.E. 757 (1900) .............................................. 31 Dupell v. Levesgue, 198 A.D.2d 639, 603 N.Y.S.2d 369 (3d Dept. 1993) ...................... 18 Esteve v. Abad, 271 App. Div. 725, 68 N.Y.S.2d 322 (1947) .......................................... 13 Falk v. Goodman, 7 N.Y.2d 87, 195 N.Y.S.2d 645 [1959] .............................................. 14 Farrar v. Teicholz, 173 A.D.2d 674, 676, 570 N.Y.S.2d 329 [2d Dept. 1991]................. 22 Gale v. Kessler, 93 A.D.2d 744, 461 N.Y.S.2d 295 (1st Dept. 1983) .............................. 14 Gardner v. Dixie Parking Corp., 80 A.D.2d 577, 435 N.Y.S.2d 784 (2d Dept. 1981) ..... 31 Gary v. Country Club Acres, Inc., 47 A.D.2d 788, 366 N.Y.S.2d 57 (3d Dept. 1975) .... 31 Gayle v. City of New York, 92 N.Y.2d 936, 680 N.Y.S.2d 900 [1998]........................... 24 Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988) ........ 13 Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93 (1968) ............................................................................................................................ 13 Greco v. Acme Super Markets, Inc., 17 A.D.2d 899, 233 N.Y.S.2d 406 [1st Dept. 1962]............................................................................................................................. 19, 20 Greenridge v Great A&P Tea Co., 7 Misc.2d 551, 164 N.Y.S.2d 831 [N.Y. City Ct. 1957].............................................................................................................................. 18 Harden v. Tynatishon, 49 A.D.3d 604, 856 N.Y.S.2d 134 (2d Dept. 2008)..................... 15 Harris v. City Of New York, 147 A.D.2d 186, 542 N.Y.S.2d 550 (1st Dept. 1989) ........ 15 Hayley Zarzana v. Sheepshead Bay Obstetrics, 289 A.D.2d 570, 735 N.Y.S.2d 627 (2d Dept. 2001) ...................................................................................... 27 Henderson v. City of New York, 178 AD2d 129 ............................................................. 14-15 iv Holender v. Fred Cammann Productions, Inc., 78 A.D.2d 233, 434 N.Y.S.2d 226 (1st Dept. 1980) ...................................................................................................... 14 Jacques v. Richal Enterprises, Inc., 300 AD2d 45, 751 NYS2d 726 (1st Dept. 2002) ..... 25 Jagel Family Assocs. v. Havenbrook Assocs., 209 A.D.2d 585, 619 N.Y.S.2d 655 (2d Dept. 1994) ...................................................................................... 16 Jeffcoat v. Andrade, 205 A.D.2d 374, 613 N.Y.S.2d 379 (1st Dept. 1994) ..................... 15 Johnston v. Joyce, 192 A.D.2d 1124, 596 N.Y.S.2d 625 (4 th Dept. 1993) ....................... 31 Josephson v. Crane Club, Inc., 264 A.D.2d 359, 694 N.Y.S.2d 376 (1st Dept. 1999) ..... 15 Kehoe v. Incorporated Village of Valley Stream, 44 N.Y.2d 704, 405 N.Y.S.2d 445 [1978] ..................................................................................................... 20 Kelsey v. Port Authority of New York and New Jersey, 52 A.D.2d 801, 383 N.Y.S.2d 347, 383 N.Y.S.2d 347 [1st 1976] ......................................................... 18, 19, 20 Kniffin v. Thruway Food Markets, Inc., 177 A.D.2d 920, 576 N.Y.S.2d 678 [3d Dept. 1991] ............................................................................................................. 22 Kriz v. Schim, et ano., 75 N.Y.2d 25, 550 N.Y.S.2d 584 (1989) ..................................... 18 Kunz v. City of Troy, 104 N.Y. 344, 349; 10 N.E. 442 [1887] ........................................ 20 Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831 (1983) .................................. 17 Lantigua v. 700 W. 178th Street Associates, L.L.C., 1 A.D.3d 151, 767 N.Y.S.2d 75 (1st Dept. 2003) ........................................................................................ 15 Lillis v. D’Souza, 174 A.D.2d 976, 572 N.Y.S.2d 136 (4 th Dept. 1991, lv denied, 78 N.Y.2d 858 (1991) ....................................................................................... 31 Marconi v. Reilly, 254 A.D.2d 463, 678 N.Y.S.2d 785 (2d Dept. 1998) ......................... 15 McCoy v. City of New York, 38 A.D.2d 961, 331 N.Y.S.2d 892 [2d Dept. 1972].............................................................................................................................. 20 McGill v. United States, 200 F.2d 873, [3d Cir. 1953]..................................................... 19 Menzel v. Plonick, 202 A.D.2d 558, 610 N.Y.S.2d 50 (2d Dept. 1994) .......................... 27 Moons v. Wade Lupe Const. Co. Inc., 24 A.D.2 3d 1005, 805 N.Y.S.2d 205 (3d Dept. 2005) .................................................................................................................... 22 v Morrison v. Altman, 278 A.D.2d 135 (1 st Dept. 2000) ..................................................... 26 O’Connor-Miele v. Barhite & Holzinger, 234 A.D.2d 106, 650 N.Y.S.2d 717 (1st Dept. 1996). ................................................................................................................... 14 O’Neill v. Port Authority of New York and New Jersey, 111 A.D.2d 375, 489 N.Y.S.2d 585 (2d Dept. 1985) ...................................................................................... 17 Park v. Caesar Chemists, 245 A.D.2d 425, 666 N.Y.S.2d 679 [2d Dept. 1997] .............. 17 People v. Moore, 155 A.D.2d 725, 547 N.Y.S.2d 685 [3d Dept. 1989] ........................... 27 Poreda v. Krofssik, 59 A.D.3d 1005, 872 N.Y.S.2d 357 (4th Dept. 2009) ...................... 15 Prince v. DiBenedetto, 189 A.D.2d 757, 592 N.Y.S.2d 388 (2d Dept. 1993) .................. 15 Prowse v. State, 70 A.D.2d 748, 416 N.Y.S.2d 889 [3d Dept. 1979].............................. 19, 20 Reardon v. Benderson Development Co., Inc., 266 A.D.2d 869, 697 N.Y.S.2d 893 [4 th Dept. 1999] ............................................................................................................. 22 Reid v. Courtesy Bus Co., 234 A.D.2d 531, 651 N.Y.S.2d 612 (2d Dept. 1996) ............ 15 Rhabb v. New York City Housing Authority, 41 N.Y.2d 200, 391 N.Y.S.2d 540 (1976) ..................................................................................................................... 20 Rootlets v. Boston-Old Colony Ins. Co., 74 A.D.2d 821, 425 N.Y.S.2d 353 [2d Dept. 1980] ............................................................................................................. 27 Schecter v. State Ins. Fund, 6 N.Y.2d 506, 190 N.Y.S.2d 656 (1959) ............................ 31 Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55 (1976) ............................ 16 Shirman v. N.Y.C.T.A., 264 A.D.2d 832, 695 N.Y.S.2d 582 [2d Dept. 1999] ................ 20-21 Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957) ..................................................................................................................... 14 State v. Metz, 241 A.D.2d 192, 671 N.Y.S.2d 79 (1st Dept. 1998) ................................. 15 Straus v. New Wah Fung Corp., 269 A.D. 2d 140, 703 N.Y.S.2d 7 [1 st Dept. 2000] ...... 22 Strychalski v. Mekus, 54 AD2d 1068 ............................................................................... 15 Swiderski v. Steinhorn, 291 N.Y. 783, 33 N.E2d 244 [1944] .......................................... 18 Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410, 322 N.Y.S.2d 665 [1971] ............. 27 vi Taylor v. Bankers Trust Co., 80 A.D.2d 483, 439 N.Y.S.2d 138 [1st Dept. 1981] ....... 19, 20 Taylor v. N.Y.C.T.A., 48 N.Y.2d 903, 424 N.Y.S.2d 888 [1979] .................................... 22 Tomaino v. 209 East 84th Street Corp., 72 A.D.3d 460, 900 N.Y.S.2d 245 (1st Dept, 2010) ............................................................................................................. 24 Universal Waste, Inc. v. NYS Dept. of Environmental Conservation, 4 Misc.3d 500, 778 N.Y.S.2d 855 (N.Y. Sup. 2004) ....................................................... 31 Vara v. Benderson Development Co., Inc., 258 A.D.2d 932, 685 N.Y.S.2d 360 [4 th Dept. 1999] ...................................................................................................... 22 Waldron v. Wild, 96 A.D.2d 190, 468 N.Y.S.2d 233 (4th Dept. 1983) ........................... 13 Walsh v. Turner Const. Co., 252 A.D.2d 470, 676 N.Y.S.2d 157 (1st Dept. 1998)......... 15 Weinstein Enterprises Inc. v. Pesso, 231 A.D.2d 516, 647 N.Y.S.2d 260 (2d Dept. 1996) .................................................................................................................... 15 Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 (3d Dept. 1964) ........................... 14 Weller v. Colleges of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990 [4th Dept. 1995] ................................................................................................................... 19, 21 Wiands v. Albany Medical Center, 29 A.D.3d 982, 816 N.Y.S.2d 162 (2d Dept. 2006) .................................................................................................................... 27 Winegrad v. New York University Medical Center, 104 A.D.2d 748, 480 N.Y.S.2d 472 [1st Dept. 1984] ...................................................................................... 28 Woloszynowkski v. N.Y.S.R.R. Co., 254 N.Y. 206, 209, 172 N.E. 471 [1930] .............. 19 Zaepfel v. E.I. du Pont de Nemours & Co., 284 App. Div. 693, 134 N.Y.S.2d 377 (3d Dept. 1954), aff’d 309 N.Y. 962 (1956)........................................................................ 31 Zavaro v. Westbury Property Inv. Co., 244 A.D.2d 547; 664 N.Y.S.2d 611 [2d Dept. 1997] ............................................................................................................. 22 Zuckerman v. City of New York, 49 N.Y.2d 557, 562; 427 N.Y.S.2d 595 [1980] .......... 16 vii Other Authorities §27-127 of the New York City Administrative Code ....................................................... 11 §27-128 of the New York City Administrative Code ....................................................... 11 §27-375(h) of the New York City Administrative Code .................................................. 10 CPLR §3101(d) ................................................................................................................. 8, 9 1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -------------------------------------------------------------------X LUIS CARRION, Plaintiff-Appellant, -against- Bronx County JOHN FAULKNER, individually and doing Index No.: 18070/06 business as FALCON MEWS ASSOCIATES and FALCON MEWS ASSOCIATES, Defendants-Respondents. -------------------------------------------------------------------X BRIEF FOR PLAINTIFF-APPELLANT In this personal injury negligence action, Plaintiff Luis Carrion (“Plaintiff”) appeals from a Decision/Order (7-9) 1 of the Supreme Court, Bronx County (Kenneth L. Thompson, J.) dated March 15, 2013 and entered March 20, 2013 in the Office of the Bronx County Clerk, which granted Defendants’ (John Faulkner, individually and doing business as Falcon Mews Associates and Falcon Mews Associates – hereinafter “Defendants” unless referred to individually) motion for summary judgment dismissing Plaintiff’s Complaint. THE NATURE OF THE ACTION AND APPEAL This action involves Plaintiff’s fall on the interior stairway in Defendants’ building on April 2, 2006, which caused him to suffer extremely serious permanent injuries. 1 Numbers in parentheses refer to pages of Record on Appeal. 2 Plaintiff’s action was brought alleging the fall was caused by the slippery condition of the badly worn marble steps. Plaintiff submits he offered more than ample proof in opposition to Defendants’ motion for summary judgment to require a denial of the motion. The court below, however, granted the motion and dismissed Plaintiff’s Complaint finding fault with Plaintiff’s engineering expert as well as Plaintiff’s testimony (8). Plaintiff submits the court below committed clear error in granting Defendants’ motion in that the court (as well as Defendants) ignored the well- established legal principles applicable to summary judgment and the court inexplicably went out of its way to “cherry pick” the evidence it wished to consider in order resolve obvious questions of fact in Defendants’ favor. THE RELEVANT FACTS The evidence is presented below in a light most favorable to Plaintiff, as it must be. On April 2, 2006, Plaintiff was visiting friends who resided at 2522 University Avenue in the Bronx. He entered the apartment building from University Avenue and made his way to the stairway located on the right side of the building. (59, 61). Plaintiff walked to the fourth floor and knocked on the door of his friends’ apartment. (71, 72). Learning they were not at home, plaintiff attempted to make 3 his way down the stairway. (73). The incident took place as plaintiff was descending the stairway between the third and second floors. (75). At his deposition, plaintiff testified as follows: Q. Did something cause you to fall? A. When I reached the 3rd floor, it’s kind of like worn down -- actually all of the stairs were kind of worn down, like shaved and worn down. Q. And did the shaved condition of the 3 rd floor cause you to fall? A. Yes. *** Q. Was any liquid on that 3rd floor? A. Liquids? Q. Yes. A. No. (75). When asked to identify the location of the incident, plaintiff testified that his fall took place at the top or first step of the stairway leading from the third floor to the landing between the second and third floors. (77-78). He also identified a photograph marked as Exhibit “C” (151) at his deposition as depicting the place where this incident occurred. He testified as follows: Q. And there is also a landing on the 3 rd floor and a landing on the 2nd floor. 4 Do any of these photographs depict the 3rd floor landing or the 3rd floor? (Defendants Exhibits A through E 13 handed to witness and perused by him) A. Here. (Witness indicates on an exhibit) MR. URRETA: You have indicated Defendants Exhibit C. Q. The 3rd floor landing which is a section of the photograph contains the -- we have called it a zigzag line, correct? A. Yes. Q. That 3rd floor landing, what was the size of that? A. Of the 3rd floor? Q. The 3rd floor landing. A. Maybe 8 x 10. 8 feet x 10 feet. Q. Where within that approximate 8 to 10 feet area did you fall? A. You are talking about the floor or the landing? The floor is 8 x 10. The landing is like 4 feet, 6 feet. Q. Where within that 8 x 10 feet of the 3rd floor did you fall? A. At the top of the step, the beginning. (Witness indicates on Defendants Exhibit C) Q. Now, I will ask you to clarify something for me if you can, and if you don t know tell me you don’t know: The 3rd floor that is depicted in Defendants Exhibit C contains a zigzag border; is that correct? A. Yes. 5 Q. Is that zigzag border the first step on the way down, or does it connect with the portion of marble - A. The portion of marble. MR. ALONSO: In other words, it’s the marble that is the step? THE WITNESS: Yes. MR. ALONSO: But it’s on the same level as the zigzag pattern on that first step, but the step itself is made out of marble; is that correct, Mr. Carrion? THE WITNESS: Yes. Q. I just want to make sure I am clear: Using Defendants Exhibit C, if you want to get from the portion of the floor that has the zigzag pattern onto the marble that is right next to it, do you have to step down onto that piece of marble or do you just walk forward? A. Walk forward. Q. So would it be fair to state that piece of marble right next to the zigzag pattern is the first step? (Counsel indicates on Defendants Exhibit C) A. Yes. Q. That’s the first step from the landing between the -- withdrawn. That’s the first step from the 3 rd floor to the landing between the 3rd floor and the 2nd floor? A. Yes. Q. Immediately before the accident occurred was one foot in front of the other? A. Yes. Q. Which foot was that? A. My left foot. 6 Q. Immediately before you slipped did your left foot come down on the zigzag pattern? Marble step? Or someplace else? A. The marble step. Q. At the time that your left foot stepped onto the marble step, where was your right foot? A. Behind me. Q. When your left foot stepped onto the marble step, was any part of your left foot hanging out over the step, over the nose of the step? A. Yes. Q. How much of your foot was hanging over the nose? A. Half. ( 76-79) *** Q. When you placed your left foot down on the step did your left foot slip? A. When I placed it down on the marble? Q. On the marble, yes. A. Yes. Q. Did it slip forward? Left? Right? Or something else? A. Forward. Q. When your left foot slipped forward did that cause you to fall? A. Yes. Q. And did you fall forward? Left? Right? Or something else? A. Backwards. 7 (Witness indicates) Q. Where did you land? A. On the landing. (81) As defense counsel continued to question Plaintiff, he further confirmed the incident was caused by the worn, “shaved” condition of that top step. As Mr. Carrion testified: Q. What I am trying to get at is: Your foot slipped because the marble was slippery not because there was any sand or anything like that on the marble? A. Right. It was slippery. Q. This marble was slippery and dry; is that correct? A. No. Slippery; shaved; worn out. (91-92) Repeatedly during his deposition Plaintiff, as he has done throughout this litigation, explained to counsel that his foot was caused to slip as a result of the worn condition of the top step in question. Plaintiff’s affidavit in opposition to Defendants’ motion (271-274) makes perfectly clear the cause of the incident in question. I was caused to fall on that portion of the stairway located between the third and second floor. As I descended from the third floor towards the landing between the third and second floor, my left foot was 8 caused to slip off of the worn edge of one of the marble steps. All of the steps along that portion of the stairway were worn and had a rounded, shaved, cupped appearance to their edge. As I placed my left foot on the top step of that potion of the stairway, the worn, shaved edge caused me to slip and lose my balance. I have reviewed the photographs attached to this affidavit and all of them are fair and accurate depictions of the area of the accident at the time of my accident. Plaintiff’s Highly Qualified Licensed Professional Engineer In addition to the foregoing testimony, affidavit, and photographic evidence concerning the precise identification and depiction of the defective condition, which caused the fall, Plaintiff also included the affidavit of Stanley Fein, PE, a licensed professional engineer who conducted an evaluation of the stairway in question within days of the incident. A summary of Mr. Fein’s opinions were previously disclosed in Plaintiff’s CPLR §3101(d) expert exchange. Mr. Fein’s detailed affidavit (275-279) was based on a thorough review of the available evidence as well as his personal examination of the accident scene. (This was in stark contrast to the disclosure of Defendants’ architectural expert which was disclosed only with the instant motion and long after discovery was complete.) 9 Mr. Fein inspected the stairway and step in question on April 5, 2006. In his expert engineering opinion, as set forth both in the Plaintiff’s CPLR §3101(d) exchange as well his affidavit, the accident and injuries sustained by plaintiff Luis Carrion on April 2, 2006 were due to Defendants’: (1) lack of proper inspection and maintenance of these steps; (2) failure to surface the steps with non-skid materials; and (3) having permitted irregularities in the walking surface to deteriorate to the point where they present a serious hazard to people using the stairway. Mr. Fein found the front edges of steps to have been worn smooth due to years of wear and neglect that long pre-dated the incident on April 2, 2006 involving Mr. Carrion. In addition, he found that there was no non-skid surfacing placed on any of the treads. The extensive photographic evidence contained in the Record (224-246, 273,278, 297, 301, 315-320) offers compelling visual evidence which corroborates every aspect of Plaintiff’s theory of liability including the deplorable and deteriorated condition of the marble steps and landing, the lack of proper maintenance of the steps, the absence of surfacing with any non-skid materials and the existence of serious irregularities in the walking surface. The photographic proof was also strong (admissible) evidence with respect to actual and constructive notice. 10 The testing done by Mr. Fein revealed that the marble stair treads in question had a dangerously low coefficient of friction and that good and accepted engineering safety practices required the placement of a non-skid surface on the marble treads. Again, specifically, Mr. Fein also found with respect to the step in question, the bullnose portion of the tread had been worn down over an extended period of time due to lack of proper maintenance and repair of the subject marble treads. The worn, slippery surface failed to provide a proper foot to stair interface and caused plaintiff’s fall. Independent of the deviations from good and accepted engineering safety practices Mr. Fein expert also opined that stairway in question is in violation of §27-375(h) of the New York City Administrative Code which “requires that steps and landings of steps shall be built of or surfaced with non-skid materials.” Here, “The subject tread surface was composed pre-cut marble which are inherently slippery and resulted in coefficient of friction measurements at the time of my inspection of between .38 and .42. Good and accepted engineering safety practice would require stairs of this type to have coefficient of friction of at least .70 to insure adequate slip resistance under all anticipated conditions.” 11 No non-skid surfacing was installed on the steps. In addition Mr. Fein found that the steps in question violated sections 27-127 and 128 of the New York City Administrative Code which require the premises to be maintained in “good repair.” 2 Based on his personal inspection of the stairway and step in question, Mr. Fein concluded with a reasonable degree of safety engineering certainty, Mr. Carrion’s accident and injuries were a direct result of the dangerous, defective and improperly maintained stairway and step and the failure to install non-skid materials to the steps surface. The step that Mr. Carrion slipped and fell on was worn and the nosing of this particular step was in a worn and slippery condition as noted above. No non-skid strips or other material were installed on the step. These conditions developed due to years of wear and the failure of the building owner and management to reasonably maintain and repair the steps. 2 Defendant’s expert architect has offered an opinion that the sections in question are not applicable to the building at issue. It is respectfully submitted that all such questions of law are for this Court to determine. More important, even if the Court were find the sections do not apply, plaintiff’s expert clearly established that the stairs in question were in a dangerous, defective condition independent of any statutory violation. Moreover, the defense expert ignored the deposition testimony of Defendant John Faulkner (171) where he testified to a major renovation of the major systems in the building between 1987 and 1989 as well as continuing minor renovations from 1989 up to and including the time of this incident in April, 2006. 12 ARGUMENT PLAINTIFF’S UNEQUIVOCAL EBT TESTIMONY AND AFFIDAVIT, THE COMPELLING PHOTOGRAPHIC EVIDENCE AND THE AMPLY SUPPORTED OPINIONS OF PLAINTIFF’S ENGINEERING EXPERT, PLAINTIFF DEMONSTRATED THE EXISTENCE OF TRIABLE ISSUES OF FACT WITH RESPECT TO DEFENDANTS LIABILITY REQUIRED DEFENDANTS’ ___MOTION FOR SUMMARY JUDGMENT TO BE DENIED____ Preliminary All one need do to realize the clear nature of the error committed by the court below is to read its opinion. When that is done, it is readily apparent that the court: (1) never engaged in issue “finding” but instead went out of its way to actually engage in issue “resolution” which it specifically prohibited when deciding a motion for summary judgment; (2) made its own findings of fact as to the mechanics of the accident, which are not borne out by the record and which it was prohibited from doing; (3) improperly chose to discredit Plaintiff’s engineering expert’s opinions while accepting, as Gospel, Defendants’ expert’s factual resolution of why the accident was attributable to the Plaintiff’s manner of descending the stairs; and (4) simply ignored every cornerstone legal principle applicable to a motion for summary judgment. 13 The general legal principles applicable to a motion for summary judgment that were ignored by the court below To obtain summary judgment, a movant must come forward with admissible evidence showing the lack of merit to his opponent’s cause of action. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988). Additionally, before summary judgment may be granted, it must clearly appear that no triable issue of fact is presented. DiMenna & Sons, Inc. v. City of New York, 301 N.Y. 118, 92 N.E.2d 918 (1950); Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93 (1968). Summary judgment is the procedural equivalent of a trial (Falk v. Goodman, 7 N.Y.2d 87, 195 N.Y.S.2d 645 [1959]) and a court is not authorized to try factual issues in a summary manner. Esteve v. Abad, 271 App. Div. 725, 68 N.Y.S.2d 322 (1947). However, that is precisely what the court below did in this case and its own opinion confirms this. The function of the court on a motion for summary judgment is that of issue finding, not issue resolution. Decision Concepts, Inc. v. Citibank, N.A., 91 A.D.2d 965, 458 N.Y.S.2d 586 (1st Dept. 1983); Esteve v. Abad, supra. In exercising that function, the court must construe the evidence presented in a light most favorable to the non-moving party. Waldron v. Wild, 96 A.D.2d 190, 468 N.Y.S.2d 233 (4th 14 Dept. 1983). Here, the court’s own opinion leaves no doubt that it reached its erroneous conclusions only as a direct result of resolving factual issues in favor of Defendants. In fact, the court must accept as true the opposing party’s evidence and any evidence submitted by the movant that favors the opposing party. Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 (3d Dept. 1964). The court below did precisely the opposite. The drastic remedy of summary judgment should not be granted when there is any doubt as to the existence of a triable issue of fact or where such an issue is even arguable. Falk v. Goodman, supra; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Gale v. Kessler, 93 A.D.2d 744, 461 N.Y.S.2d 295 (1st Dept. 1983); Holender v. Fred Cammann Productions, Inc., 78 A.D.2d 233, 434 N.Y.S.2d 226 (1st Dept. 1980). Plaintiff submits it is impossible to read the Record in this case and not reach the conclusion that this mandate was followed by the court below. In O’Connor-Miele v. Barhite & Holzinger, 234 A.D.2d 106, 650 N.Y.S.2d 717 (1st Dept. 1996), the court stated the core principle to be scrupulously followed: “[O]n a defendant’s motion for summary judgment, opposed by plaintiff, we are required to accept the plaintiff’s pleadings, as true, and our decision ‘must be made on the version of the facts most favorable to [plaintiff]’. (Henderson v. 15 City of New York, 178 AD2d 129, 130, quoting Strychalski v. Mekus, 54 AD2d 1068, 1069). Applying that standard to the matter herein, we find that the evidence presented by plaintiff created a material question of fact which precludes summary judgment.” What also must be remembered is that a party opposing a motion for summary judgment may do so on the basis of deposition testimony as well as other admissible forms of evidence. Poreda v. Krofssik, 59 A.D.3d 1005, 872 N.Y.S.2d 357 (4th Dept. 2009); Harden v. Tynatishon, 49 A.D.3d 604, 856 N.Y.S.2d 134 (2d Dept. 2008); Lantigua v. 700 W. 178th Street Associates, L.L.C., 1 A.D.3d 151, 767 N.Y.S.2d 75 (1st Dept. 2003); Josephson v. Crane Club, Inc., 264 A.D.2d 359, 694 N.Y.S.2d 376 (1st Dept. 1999); Walsh v. Turner Const. Co., 252 A.D.2d 470, 676 N.Y.S.2d 157 (1st Dept. 1998); Marconi v. Reilly, 254 A.D.2d 463, 678 N.Y.S.2d 785 (2d Dept. 1998); State v. Metz, 241 A.D.2d 192, 671 N.Y.S.2d 79 (1st Dept. 1998); Reid v. Courtesy Bus Co., 234 A.D.2d 531, 651 N.Y.S.2d 612 (2d Dept. 1996); Weinstein Enterprises Inc. v. Pesso, 231 A.D.2d 516, 647 N.Y.S.2d 260 (2d Dept. 1996); Jeffcoat v. Andrade, 205 A.D.2d 374, 613 N.Y.S.2d 379 (1st Dept. 1994); Prince v. DiBenedetto, 189 A.D.2d 757, 592 N.Y.S.2d 388 (2d Dept. 1993); Harris v. City Of New York, 147 A.D.2d 186, 542 N.Y.S.2d 550 (1st Dept. 1989). 16 As the Court can plainly see, this is not a situation wherein a plaintiff facing a potential dismissal or damaging omissions or admissions in a previous deposition embarks on a belated attempt to salvage his case. If anything, Mr. Carrion’s deposition, authentication of photographic evidence and expert proof were more than adequate to defeat Defendants’ motion on the merits. His affidavit does nothing more than cull from his deposition the most important aspects of his testimony for the purposes of clarity. Probably the most striking deficiency in Defendants’ moving papers is the fact that they have failed in their burden of establishing entitlement to judgment as a matter of law (Beecher Greenman Constr. Corp. v. Incorporated Vil. of Northport, 209 A.D.2d 565, 619 N.Y.S.2d 293 (2d Dept. 1994); Zuckerman v. City of New York, 49 N.Y.2d 557, 562; 427 N.Y.S.2d 595 [1980]) by “tendering sufficient evidence to demonstrate the absence of any material issues of fact” Jagel Family Assocs. v. Havenbrook Assocs., 209 A.D.2d 585, 619 N.Y.S.2d 655 (2d Dept. 1994); see also, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 (1986). As To Premises Liability Cases Since the Court of Appeals decisions in Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 (1976) and Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55 (1976), the duty owned by a party responsible for a particular 17 condition situated at a specific location in New York has been one of “reasonable care under the circumstances [with] foreseeability [as] a measure of liability.” (40 N.Y.2d at 241). Also see, Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831 (1983); DeMarrais v. Swift, 283 A.D.2d 411, 724 N.Y.S.2d 77 (2d Dept. 2001). A defendant moving for summary judgment in a “premises” case has “the initial burden of establishing the lack of actual or constructive notice [cits. omitted].” (Park v. Caesar Chemists, 245 A.D.2d 425, 666 N.Y.S.2d 679 [2d Dept. 1997]). Moreover, “[p]roof of lack of actual notice alone… [is] insufficient [cit. omitted].” (Park, supra). Here, other than conclusory allegations on the part of Defendants, there was no evidence offered by Defendants with respect to lack of actual or constructive notice. Thus, a defendant, as movant, must also “show lack of constructive notice, in that the condition which caused the accident was not visible or apparent for a sufficient length of time to permit… [defendant], in the exercise of reasonable care, to remedy the defect [cits. omitted].” It is also clear that questions regarding causation, foreseeability and negligence are questions of fact which are reserved for the jury’s consideration. See: O’Neill v. Port Authority of New York and New Jersey, 111 A.D.2d 375, 489 N.Y.S.2d 585 (2d Dept. 1985); Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 18 308, 434 N.Y.S.2d 166 (1989); Kriz v. Schim, et ano., 75 N.Y.2d 25, 550 N.Y.S.2d 584 (1989); Dupell v. Levesgue, 198 A.D.2d 639, 603 N.Y.S.2d 369 (3d Dept. 1993); Consolidated Edison Company of New York, Inc. v. Jet Asphalt Corporation, 132 A.D.2d 296, 522 N.Y.S.2d 124 (1st Dept. 1987). As to Notice Generally Although the court below chose to simply ignore the issue of notice in favor of making impermissible factual determinations as to how the accident occurred and why it was not Defendants’ fault, it is indisputable that Plaintiff amply demonstrated Defendants had both actual and constructive notice of the deplorable condition of the stairway in question. The question of notice, actual or constructive, is generally a fact issue for a jury (Berkowitz v. Prudential Savings Bank, 269 App. Div. 988, 58 N.Y.S.2d 280 [2d Dept. 1945]; Bordonaro v. Bank of Blaisdell, 285 N.Y. 606, 33 N.E.2d 541 [1941]; Kelsey v. Port Authority of New York and New Jersey, 52 A.D.2d 801, 383 N.Y.S.2d 347, 383 N.Y.S.2d 347 [1st 1976]; Burke v. Wegman's Food Markets, Inc., 1 Misc.2d 130, 146 N.Y.S.2d 556, [N.Y. Sup. 1955]; Greenridge v Great A&P Tea Co., 7 Misc.2d 551, 164 N.Y.S.2d 831 [N.Y. City Ct. 1957]; Swiderski v. Steinhorn, 291 N.Y. 783, 33 N.E2d 244 [1944]). 19 Moreover, if a defendant has a duty to conduct reasonable inspections, the issue of actual or constructive notice is irrelevant. (Weller v. Colleges of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990 [4th Dept. 1995]). In any event, however, the question of notice "is best submitted to and evaluated by the jury" (Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717 [1978]). (emphasis added). Accord, Taylor v. Bankers Trust Co., 80 A.D.2d 483, 438 N.Y.S.2d 138 [1st Dept. 1981; Prowse v. State, 70 A.D.2d 748, 416 N.Y.S.2d 889 [3d Dept. 1979]; Kelsey v. Port Authority, 52 A.D.2d 630, aff’d 48 N.Y.2d 903; McCoy v. City of New York, 38 A.D.2d 961; Greco v. Acme Super Markets, Inc., 17 A.D.2d 899, 233 N.Y.S.2d 406 [1st Dept. 1962]). As to Actual Notice Actual knowledge (notice) exists not only when a party owing the duty of care is told of the presence of a condition but also, when such a party is present and sees the condition or it is so plainly visible, that he should have seen it. Time is not an element in such a case. Actual knowledge may be inferred from the circumstances despite professions of ignorance (Woloszynowkski v. N.Y.S.R.R. Co., 254 N.Y. 206, 209, 172 N.E. 471 [1930]; cf., McGill v. United States, 200 F.2d 873, [3d Cir. 1953]). If a party owing a duty to maintain, makes regular inspections of the premises where the condition is in plain view that is actual knowledge. "The 20 opportunity for knowledge stands for the purpose of the case as actual knowledge." (Kunz v. City of Troy, 104 N.Y. 344, 349; 10 N.E. 442 [1887]). Accord, Rhabb v. New York City Housing Authority, 41 N.Y.2d 200, 391 N.Y.S.2d 540 (1976). With an on-site full-time Superintendent who lived in the building and was responsible for cleaning the stairs (175-176) it cannot be disputed that Defendants had actual knowledge of the condition in question. As to Constructive Notice Constructive notice exists when a sufficient length of time has passed so that, in the exercise of reasonable care in performing the duty to maintain, a condition should have been discovered (Kehoe v. Incorporated Village of Valley Stream, 44 N.Y.2d 704, 405 N.Y.S.2d 445 [1978]; Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717 [1978]; Taylor v. Bankers Trust Co., 80 A.D.2d 483, 439 N.Y.S.2d 138 [1st Dept. 1981]; Prowse v. State, 70 A.D.2d 748, 416 N.Y.S.2d 889 [3d Dept. 1979]; Kelsey v. Port Authority, 52 A.D.2d 801, 383 N.Y.S.2d 347 [1st Dept. 1976], aff’d, 48 N.Y.2d 903; McCoy v. City of New York, 38 A.D.2d 961, 331 N.Y.S.2d 892 [2d Dept. 1972]; Greco v. Acme Super Markets, Inc., 17 A.D.2d 899, 233 N.Y.S.2d 406 [1st Dept. 1962]). Constructive notice will also be found in situations where a defect is visible and apparent and has been in that condition so long that the defendant is presumed to have seen it, or to have been negligent in failing to see it. (Shirman v. 21 N.Y.C.T.A., 264 A.D.2d 832, 695 N.Y.S.2d 582 [2d Dept. 1999] and the authorities cited therein). Moreover, if a defendant has a duty to conduct reasonable inspections, the issue of actual or constructive notice is irrelevant. (Weller v. Colleges of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990 [4th Dept. 1995]). Here, the plaintiff’s expert’s affidavit clearly establishes that the defective condition unquestionably existed over a protracted length of time. According to Mr. Fein the worn condition of the steps would have taken many months, if not years, to develop. Such a condition is one that an owner or manager of a premises could and should have taken notice of in the exercise of due care. More importantly, Defendant John Faulkner testified at this deposition (181) that the steps would be replaced when they were broken. Clearly, Defendants and their employees made regular inspections of the steps. Here, there can be no dispute that Defendants had both actual and constructive notice of the condition of the stairs in question. Photographic evidence as proof of constructive notice It is well-settled law in this State that photographs may be used to prove constructive notice of an alleged defect if the photographs were taken reasonably 22 close to the time of the accident and depict the defect in a condition similar to that at the time of the accident. This is because photographs may establish that a condition was visible and apparent or that it had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant. (Taylor v. N.Y.C.T.A., 48 N.Y.2d 903, 424 N.Y.S.2d 888 [1979]; Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717 [1978]; Moons v. Wade Lupe Const. Co. Inc., 24 A.D.2 3d 1005, 805 N.Y.S.2d 205 (3d Dept. 2005); DeGiacomo v. Westchester County Healthcare Corp., 295 A.D.2d 395, 743 N.Y.S.2d 548 [2d Dept. 2002]; Straus v. New Wah Fung Corp., 269 A.D. 2d 140, 703 N.Y.S.2d 7 [1 st Dept. 2000]; Reardon v. Benderson Development Co., Inc., 266 A.D.2d 869, 697 N.Y.S.2d 893 [4 th Dept. 1999]; Vara v. Benderson Development Co., Inc., 258 A.D.2d 932, 685 N.Y.S.2d 360 [4 th Dept. 1999]; Atkins v. Francesca Realty Associates, 238 A.D.2d 457, 657 N.Y.S.2d 927 [2d Dept. 1997]; Zavaro v. Westbury Property Inv. Co., 244 A.D.2d 547; 664 N.Y.S.2d 611 [2d Dept. 1997]; Kniffin v. Thruway Food Markets, Inc., 177 A.D.2d 920, 576 N.Y.S.2d 678 [3d Dept. 1991]; Farrar v. Teicholz, 173 A.D.2d 674, 676, 570 N.Y.S.2d 329 [2d Dept. 1991]). Here, the Court can clearly see that the defective condition unquestionably existed over a protracted length of time thereby establishing notice (or at least a question of fact with respect thereto) on the part of Defendants. The condition in 23 the photographs is one that could not have come into existence only shortly before the accident. In fact, the severely deteriorated condition of the marble steps in question is clearly one that either took a considerable amount of time to develop or had existed for a considerable period of time before the accident. A period of several years would not be an overstatement. The burden of proof imposed on a defendant moving for summary judgment in a premises case with respect to the issue of notice. A defendant moving for summary judgment in a “premises” case has “the initial burden of establishing the lack of actual or constructive notice [cits. omitted].” (Park v. Caesar Chemists, 245 A.D.2d 425, 666 N.Y.S.2d 679 [2d Dept. 1997]). Moreover, “[p]roof of lack of actual notice alone… [is] insufficient [cit. omitted].” (Park, supra). Here, Defendants never demonstrated they lacked actual or constructive notice of the condition in question. Thus, a defendant, as movant, must also “show lack of constructive notice, in that the condition which caused the accident was not visible or apparent for a sufficient length of time to permit… [defendant], in the exercise of reasonable care, to remedy the defect [cits. omitted].” (Park, supra, at 666 N.Y.S.2d 680). 24 As for Plaintiff’s Burden with Respect to Causation The court below also ignored the principle that a plaintiff “need not positively exclude every other possible cause of the accident…A plaintiff need only prove that it was ‘more likely’…or ‘more reasonable’…that the alleged injury was caused by the defendant’s negligence than by some other agency.” (Gayle v. City of New York, 92 N.Y.2d 936, 680 N.Y.S.2d 900 [1998]). Also see, Tomaino v. 209 East 84th Street Corp., 72 A.D.3d 460, 900 N.Y.S.2d 245, (1st Dept, 2010). In Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, the Court of Appeals stated: In order to prevail at trial in a negligence case, a plaintiff must establish by a preponderance of the evidence that the defendant’s negligence was a proximate cause of plaintiff’s injuries. A plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred (Schneider v. Kings Highway Hosp. Ctr., 67 NY2d 743, 744-745, 500 NYS2d 95, 490 NE2d 1221; Humphrey v. State of New York, 60 NY2d 742, 744, 469 NYS2d 661, 457 NE2d 767; Wragge v. Lizza Asphalt Constr. Co., 17 NY2d 313, 321, 270 NYS2d 616, 217 NE2d 666). Plaintiff’s burden of proof on this issue is satisfied if the possibility of another explanation for the event is sufficiently remote or technical ‘to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ (Schneider v. Kings Highway Hosp. Ctr., supra, at 744, 500 NYS2d 95, 490 NE2d 1221; see also, Gayle v. City 25 of New York, 92 NY2d 936). When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiff’s burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant’s conduct proximately caused plaintiff’s injuries. In Jacques v. Richal Enterprises, Inc., 300 AD2d 45, 751 NYS2d 726 (1st Dept. 2002), this Court explained: The IAS court granted defendant’s motion, finding that plaintiff’s affidavits were self-serving, and, in any event, did not provide sufficient evidence to charge defendant with constructive notice of the dirty water and ice on its floor. Because the IAS Court misconstrued defendant’s burden as proponent of this motion for summary judgment, we reverse. *** …defendant, as the proponent of the motion, has the burden of showing its ‘entitlement to judgment as a matter of law.’ ***` In focusing on the persuasiveness of the plaintiff’s proof, the IAS Court engaged in ‘issue-determination’ rather than ‘issue-finding’ (Pirelli v. Long Is. R.R. Corp., 226 A.D.2d 166). Here, Plaintiff’s testimony and affidavit that he slipped and fell on the worn, shaved, slippery top step of the subject stairway, when considered together with his expert’s opinion regarding the worn, uneven and hazardous condition of the step 26 and the compelling photographic evidence, raises a question of fact as to whether the fall was caused by the defective condition. Babich v. R.G.T. Restaurant Corp., 75 A.D.3d 439, 906 N.Y.S.2d 528, (1st Dept, 2010). In Babich, when faced with facts strikingly similar to the case at hand, this Court held: Moreover, the injured plaintiff's testimony that she slipped on the top step of the subject stairway, coupled with her expert's testimony of the slippery condition of such steps due to worn-off treads, provided sufficient circumstantial evidence to raise an issue of fact as to whether her fall was caused by the allegedly defective condition (see *441 Garcia v. New York City Tr. Auth., 269 A.D.2d 142, 703 N.Y.S.2d 4 [2000]; Gramm v. State of New York, 28 A.D.2d 787, 281 N.Y.S.2d 235 [1967], affd. 21 N.Y.2d 1025, 291 N.Y.S.2d 7, 238 N.E.2d 498 [1968]). The accident analysis and professional opinion of plaintiff’s highly qualified engineering and safety expert precluded summary judgment. The authorities are clear that when the non-movant submits an affidavit from a competent expert showing the existence of a triable issue of fact as to whether defendants were negligent, the summary judgment motion must be denied. See, Cooper v. St. Vincent’s Hosp., 290 A.D.2d 358 (1 st Dept. 2002); Dellert v. Kramer, 280 A.D.2d 438 (1 st Dept. 2001); Morrison v. Altman, 278 A.D.2d 135 (1 st Dept. 2000); Avacato v. Mount Sinai Medical Center, 277 A.D.2d 32 (1 st Dept. 2000); 27 Hayley Zarzana v. Sheepshead Bay Obstetrics, 289 A.D.2d 570, 735 N.Y.S.2d 627 (2d Dept. 2001); Menzel v. Plonick, 202 A.D.2d 558, 610 N.Y.S.2d 50 (2d Dept. 1994); Wiands v. Albany Medical Center, 29 A.D.3d 982, 816 N.Y.S.2d 162 (2d Dept. 2006). There is no question that an expert need not visit an accident scene or even be familiar with the actual subject matter of the occurrence as long as any expert opinion is based on evidence such as depositions, photographs, reports, or other reliable information. Moreover, the basis for an expert’s opinion need only be fairly inferable from the record. As long as an expert opinion meets these threshold requirements, any shortcoming it may otherwise have goes only to the weight of the evidence and not to its admissibility. (Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410, 322 N.Y.S.2d 665 [1971]; People v. Moore, 155 A.D.2d 725, 547 N.Y.S.2d 685 [3d Dept. 1989]; Aetna Cas. & Sure. Co., 86 A.D.2d 362, 450 N.Y.S.2d 10 [1 st Dept. 1982]; Rootlets v. Boston-Old Colony Ins. Co., 74 A.D.2d 821, 425 N.Y.S.2d 353 [2d Dept. 1980]). Here, the extremely detailed affidavit of Plaintiff’s highly qualified engineering and safety ex pert, offered in opposition to the motion for summary judgment, was based upon careful examination and review of all of the available evidence in this case. 28 In terms of expert opinions offered in support (or opposition) to a party’s position in a pending litigation, New York courts are vigilant in monitoring the difference between admissibility and weight when it comes to such expert testimony. While a court may not like the opinions of a particular expert and even believe those opinions to be inferior in some way to those offered by an adverse expert retained by the opposing party, there is no justification whatsoever for “cherry picking” a version of an incident advocated by defense counsel and “plaintiffs’ cause of action should not be lightly tossed off on a motion for summary judgment.” (Winegrad v. New York University Medical Center, 104 A.D.2d 748, 480 N.Y.S.2d 472 [1st Dept. 1984]). When faced with a situation wherein the trial court chose to disregard plaintiff’s expert in favor of those retained by the defendant, this Court reversed the setting aside of a verdict in favor of plaintiff stating, in pertinent part: “Plaintiff's expert witness, a licensed engineer, testified that the protrusion of the steps over the side rails amounted to improper design in that it would lead to excessive bending of the steps in that area. The fact that the truss bars were centered more to the rear of the steps than the center also would lead to the steps breaking at their weakest point, the front edges. Further, the cut-out corners on the front edges also constituted improper design as they made the front edges weaker. It was the expert's opinion that the ladder was defectively designed 29 and unreasonably unsafe, and that alternative designs and all the technology necessary for such safer designs were available when the ladder was manufactured. In the expert's opinion it was reasonably foreseeable that the front edge of a step could break, causing a person to fall off the ladder and in falling break other steps as well. Defendant presented five expert witnesses. These witnesses testified that the ladder met the applicable safety codes for ladders of that time and that while the 1952 code did not mention the use of a leading edge, the 1981 code sanctioned such use to the extent of three quarters of an inch. Some of these witnesses testified that the steps must have been broken prior to the accident. Two witnesses, ladder manufacturers, testified that their companies manufactured similar ladders and no claims had been made relating to broken leading edges. One expert witness for the defense stated that the leading edge was basically for cosmetic effect, not support, and that the front edges of steps do wear out more than the back edges. This witness also stated that many ladders today are made with shorter overhangs or none at all. From what is summarized herein of the trial evidence it is clear that this case presented a classic battle of the experts where the evidence was sharply contested as to the primary issue, defective and unsafe design in the overhang front edges of this ladder's steps. However, to make the determination in this case that the jury's verdict was palpably incorrect and against the preponderance of the evidence, one would have to conclude that the testimony of plaintiff's expert was plainly unworthy of belief. There was nothing as implausible about that evidence as to require the jury not to give it credence. Accordingly, the finding of a defect was not plainly against the preponderance of the evidence.” (emphasis added.) (Loughman v. A.W. Flint Co., Inc., 132 A.D.2d 507, 518 N.Y.S.2d 389 [1st Dept. 1987], Leave to Appeal Denied at 70 N.Y.2d 613, 524 N.Y.S.2d 432 [1987]). 30 A court must always resist the temptation to substitute its view of the evidence for that of a jury’s and refrain from setting itself up as a “super jury” ready to disregard factual issues, resolve questions of fact on its own, or discredit expert opinions simply because the court believes itself to be in a superior position to weigh the opinion of an expert or the evidence in general. It certainly appears the court below succumbed to that temptation as its opinion clearly indicates it engaged in issue determination based on the impermissible combination of Defendants’ expert’s suppositions as to what he believed occurred and improperly disregarding Plaintiff’s expert’s amply supported opinions. When lower courts in New York engage in such inappropriate speculation, the appellate courts have always stepped in to restore the rule of law. See, for example Brown v. City of New York, 63 A.D.2d 635, 405 N.Y.S.2d 253 (1st Dept. 1978), affirmed 47 N.Y.2d 927, 393 N.E.2d 486, 419 N.Y.S.2d 491 (1979): “Judgment, Supreme Court, New York County, entered on April 4, 1977, setting aside a jury verdict for the plaintiff in the sum of $482,000 and dismissing the complaint, unanimously reversed, on the law and the facts, without costs or disbursements, the verdict reinstated as to liability...Granting the plaintiff the most favorable view of the evidence as we must (Pave v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960) we find that she has made out a prima facie case on the issue of liability and that in setting aside the 31 verdict and dismissing the complaint the trial court impermissibly discredited her expert witness whose testimony must have been found credible by the jury (cites. omitted).” (emphasis added). In New York, as in all other state and federal jurisdictions, the divergent opinions offered by the various experts present “classic” factual questions that are indisputably for a jury alone to resolve. Dougherty v. Milliken, 163 N.Y. 527, 57 N.E. 757 (1900); Johnston v. Joyce, 192 A.D.2d 1124, 596 N.Y.S.2d 625 (4 th Dept. 1993); Lillis v. D’Souza, 174 A.D.2d 976, 572 N.Y.S.2d 136 (4 th Dept. 1991, lv denied, 78 N.Y.2d 858 (1991); Gary v. Country Club Acres, Inc., 47 A.D.2d 788, 366 N.Y.S.2d 57 (3d Dept. 1975); Gardner v. Dixie Parking Corp., 80 A.D.2d 577, 435 N.Y.S.2d 784 (2d Dept. 1981); Schecter v. State Ins. Fund, 6 N.Y.2d 506, 190 N.Y.S.2d 656 (1959); Zaepfel v. E.I. du Pont de Nemours & Co., 284 App. Div. 693, 134 N.Y.S.2d 377 (3d Dept. 1954), aff’d 309 N.Y. 962 (1956). As the court so aptly put it in Universal Waste, Inc. v. NYS Dept. of Environmental Conservation, 4 Misc.3d 500, 778 N.Y.S.2d 855 (N.Y. Sup. 2004): “A reason-based battle between experts is pathognomonic of an issue for a fact finder.” Thus, the experts’ credibility and which opinion to believe is solely within the province of the jury. 32 Clearly, any motion for summary judgment in a case such as this would always be expected to contain the opinion of a qualified expert that agreed with the defense’s position that defendant’s side is the correct one. It would not make any sense for a defendant to retain an expert who did not provide precisely the opinions needed to support such a motion. That is exactly why a court must not simply accept those partisan opinions as Gospel, especially when the plaintiff opposes the motion on the basis of an opinion from a competent expert that is not inherently incredible or based on facts not contained in the record. It is for a jury alone to weigh the relative credibility and probative value of expert testimony. Once a court rules on its admissibility, the weight to be given to expert testimony is for the jury. When a court invades the province of the jury and chooses which expert to believe in order to steer clear of a resolution of a closely contested case on the merits, the result cannot be permitted to stand. Plaintiff submits that is exactly what makes the dismissal herein erroneous as a matter of law. Thus, rather than ending abruptly in a summary dismissal, the case at bar should have been permitted to proceed to trial before a jury so that the clear questions of fact presented by the evidence could be decided on the merits. 33 CONCLUSION The Order appealed from should be reversed, Defendants’ motion for summary judgment denied, and Plaintiff’s complaint reinstated. Dated: New York, New York July 7, 2014 Respectfully submitted, Alonso Krangle LLP Attorneys for Plaintiff Arnold E. DiJoseph, P.C. Appellate Counsel for Plaintiff By:________________________ Arnold E. DiJoseph, III Arnold E. DiJoseph, III Of Counsel 34 Printing Specifications Statement Appellate Division – First Judicial Department I, the undersigned, hereby certify that this brief is in compliance with § 600.10(d)(1)(v). The brief was prepared using Microsoft Word. The Typeface is Times New Roman. The main body of the brief is in Point Size 14. Footnotes and Point Headings are in compliance with § 600.10(d)(1)(i). The brief contains 7,175 words counted by the word processing program. Dated: July 7, 2014 ______________________________ Arnold E. DiJoseph, III Appellate Counsel for Plaintiff-Appellant SUPREWffiCOURTOFTHESTATEOFNcWYORK COlJNTY OF BRONX ~-~~~-------------------------- -X LUIS CARRION Plaintiff, -against- JOHN FAULKNER, individually and doing business as FALCON MEWS ASSOCIATES and FALCON MEWS ASSOCIATES, Defendants -- - - ---------- - - ---- ~ -- ------------- ---X Appeal From: Supreme Court of the State of New York County: Bronx County Judge: Hon. Kenneth L. Thompson, Jr. Index No. 18070/2006 Date Notice of Appeal Filed: April 23, 2013 D t fo d March 15,2013 a eo r er: Date Order Entered: March 20• 2013 For Appellants: Andres F. Alonso, Esq. Alonso Krangle, LLP 445 Broad Hollow Road Suite 205 Melville, New York 11747 516 350 5555 For Respondents: Martin J, Moskowitz Gannon, Rosenfarb, Bailetti & Drossman 1 00 William Street 7th Floor New York, New York 10038 212 655 5000 Index No. 18070/2006 PREARGUMENT STATEMENT Disposition in Court Below: Dismissal of Complaint upon granting of summary judgement to defendants. Issues to be Raised on Appeal: Whether the Court erred in granting defendants' motion for summary judgement and dismissing plaintiff's complaint. Related Actions: There are no related actions to this matter. ATTORNEY'S CERTIFICATION The undersigned hereby certifies that, to the best of the undersigned's knowledge, information and belief, formed after a reasonable inquiry under the circumstances. the Page- 2- Presentation of the within PRE-ARGUMENT STATE1v1ENT or the contentions contained Herein is/are not frivolous as defined in 22 NYCRR § 130-1.1 ©. Dated: April21, 2013 TO: Martin J. Moskowitz, Esq. Gannon, Rosenfarb, Balleti & Drossman 100 William Street 7th Floor New York, New York 10038 212 655 5000 /,. I / /:// /~ Ar;etre:AIOnso, Esq. 1\lonso Krangle, LLP 445 Broad Hollow Road Suite 205 Melville, New York 11747 516 350 5555 Page- 3-