Luis Carrion, Appellant,v.John Faulkner,, et al., Respondents.BriefN.Y.April 26, 2016GANNON, ROSENF ARB & DROSSMAN Ar[ORNEYS AT LAw 100 WILLL\M STREET 7THFIDOR NEW YORK, NEW YORK 10038 Peter J. Gannon Jason B. Rosenfarb David A. Drossman James A. Aldag Rojika Antanesian Marisa An-abito Sophia M. Candela Gerard A. Connolly William J. Crowe Lisa L. Gokhulsingh Nicholas Gisonda James G. Kelly John M. Piccirillo Elan Raday Angelo A. Rios JohnH. Shin Hon. John P. Asiello Clerk of the Court State of New York Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, NY 12207-1095 Re: Carrion v. Faulkner APL-2015-00323 Dear Mr. Asiello: TELEPHONE: (212) 655-5000 FACSIMILE: (212) 655-5039 DIRECT DIAL: ( 646) 354-2419 EMAIL:LISA.GOKHULSINGH@AMfRUSTGROUP.COM MARCH 25, 2016 This office represents the defendants-respondents John Faulkner, individually and doing business as Falcon Mews Associates and Falcon Mews Associates' (collectively "Faulkner''). We submit this letter memorandum under the terms of this Court's scheduling order and section 500.11 of this Court's Rules to explain why the Appellate Division, First Department's affirmance in dismissing the plaintiff-appellant Luis Carrion's complaint was correct. The First Department's unanimous decision found that "[t]he worn marble edge of the step on which plaintiff allegedly slipped is not an actionable defect." Carrion v. Faulkner, 129 A.D. 3d 456 (1st Dep't 2015). In so doing, the First Department considered the authenticated photographic evidence and measurements taken of the edge of the step, that show that the edge of the step was not worn down, rounded, shaved or cupped. Thus, it was not in a defective condition. Carrion's expert, Stanley Fein, failed to rebut the measurements, which showed that the edge of the tread maintained its width. And while Mr. Fein opined that "the front bullnose portion of the steps and in particular that of the top step, became worn and rounded so that they created a slipping hazard in that the ball of one's foot coming into contact with the worn bullnose section would lack proper traction," the ball of Carrion's foot did not come into contact with the edge of the step. Thus, his opinion was not based on facts in evidence. And Carrion admitted that there were no liquids, garbage, debris or gravel on the top step that caused or contributed to his accident. Thus, the First Department did not disregard prior precedents in determining that the defect was nonactionable. Rather, it relied on the body of authorities that hold that mere slipperiness of marble treads is not actionable, a point that Carrion readily concedes, and used the supporting documentation, photographs and testimonial evidence to determine that Carrion's claim fell squarely within those precedents. Thus, even if this Court chooses to modify the general language of the First Department's decision, it should affirm on a finding that the tread on which Carrion allegedly slipped was not defective. Factual Background Carrion slipped and fell on a staircase at the building on April 2, 2006 CR. 33, 224-226).1 Faulkner purchased the building, a five-story walk-up built in 1921, in 1987 (R. 160, 163, 170,213,247). The building has not undergone significant alterations and remains governed by the Tenement House Law (R. 171,193,213,249). The building is equipped with two staircases that lead to the apartments (R. 174). The fabricated metal staircases are covered with treads2 made of marble and the landings are covered with tile (R. 151, 183, 184,225,249,275). If a tread becalne broken Faulkner's managing agent would purchase and install a new one (R. 181, 201, 208). Carrion went to the building to play PlayStation/Nintendo with building residents Gustavo and Oscar (R. 69, 73). Carrion had been to the building several times before his accident (R. 88, 89, 90). Carrion and his friend Jason went up to Gustavo and Oscar's fourth-floor apartment CR. 71). On discovering that Gustavo and Oscar were not at home, Carrion and Jason decided to leave (R. 72-73). Carrion's accident occurred when he was descending the staircase in order to leave the building (R. 73). Carrion was at the top step of the third floor closer to the banister (R. 75, 77, 80). He was not using the banister (R. 80). As he stepped down with his left foot, half of his foot hung over the nose of the step (R. 79). Carrion's left foot slipped forward 1 Numbers in parenthesis refer to the Record on AppeaL 2 While the correct term is "tread," Carrion and Faulkner referred to the tread as a step. 2 resulting in his fall (R. 81). Carrion admitted that there were no liquids, garbage, debris or gravel on the top step (R. 75, 91, 94). And the tiled portion of the landing did not contribute to his fall (R. 98). Instead, he claimed that the slippery, shaved and worn down condition of the top step caused his accident (R. 75, 92, 94). Carrion did not attempt to reach for the banister as he fell and made no other attempts to arrest his fall (R. 91, 98). Carrion admitted that he made no complaints to the landlord or anyone affiliated with the building (R. 105). He knew of no one who had made complaints about the steps to the landlord or anyone who worked for the building (R. 105). Faulkner concurred in that he had not received any complaints about the treads (R. 208-209). Carrion commenced an action against Faulkner alleging, among other things, that Faulkner was negligent in violating the Multiple Dwelling Law ("MDL") and provisions of the 1968 Building Code and in "allowing the front bullnose portion of the steps to become worn and rounded" (R. 21-22, 34). Carrion also claimed that Faulkner had actual and constructive notice of the condition (R. 35). After discovery was complete, Faulkner moved for summary judgment on the ground that the stairs were not defective (R. 10-15, 13). In support of the motion, Faulkner relied on an affidavit from licensed architect Benjamin A. Leonardi (R. 212-214). Leonardi based his opinions on his inspection of the staircase, along with Carrion's authenticated photograph of the staircase, bill of particulars, depositions of both parties and records from the Department of Buildings (R. 213). Leonardi also took photographs (R. 224-246). The photographic evidence confirms Leonardi's opinion that the thickness was uniform (R. 242). Cam'on, 129 A.D.3d at 457. Indeed, contrary to Carrion's claim that the tread was worn, Leonardi found that d1e marble was 3/4" thick and, while it had normal wear, "it maintain [ed] the thickness of the marble tread at its edging where [Carrion] had stepped" (R. 214, 222, 234, 235, 236, 241, 245). Addressing Carrion's statutory claims, Leonardi opined that the building was erected in 1921, before the MDL was enacted (R. 213, 249). Leonardi's opinion was based on Faulkner's testimony that the building has a Certificate of Occupancy from 1921, had not undergone significant renovations and did not require a new Certificate of Occupancy (R. 170, 193). On those facts, and his independent confirmation of when the building was erected, Leonardi opined that the Tenement House Law, not the MDL or Administrative Code § 27-375, governed the building's staircase (R. 213,214,247, 249). The staircase and its treads, Leonardi found, complied with the Tenement House Law (R. 214, 249). Faulkner also relied on Carrion's admission that he knew of no one who had made complaints about the step and the fact that Faulkner had received no complaints about the step (R. 14). 3 In opposition, Carrion relied, almost entirely, on an affidavit from Stanley Fein, P.E. (R. 275-279). Notably, Fein did not review Carrion's deposition before rendering his opinion (R. 275-277). He relied instead on an inspection he conducted three days after Carrion's accident (R. 275). Fein opined that the marble treads were inherently slippery, that they had become worn, failing "to provide proper foot to stair interface," and violated Administrative Code §§ 27-127, 27-128 and 27-375 inasmuch as they should have been surfaced with non-skid material (R. 276-277). He did not explain his testing methodology or identify the basis for the coefficient of friction value he utilized (R. 276). Separate from any code violations, Fein claimed that unspecified "good and accepted engineering safety practice ... requires the placement of non-skid strips to prevent treads from being unreasonably and dangerously slippery" (R. 276). Although he claimed that the treads were worn, Fein did not take or report any measurements of the tread depth (R. 275-277,275). And the photographs he took fail to show any worn condition that he described (R. 278-279). Nevertheless, according to Fein, the worn condition of the bullnose of the tread had developed over a period of years (R. 276). Although Carrion submitted an affidavit in which he attested that "all of the steps along that portion of the stairway were worn and had a rounded, shaved, cupped, appearance to their edge," he had never previously described the tread on which he slipped as rounded or cupped at the edge (R. 75, 92, 94, 272). The lower court (Thompson, ].S.C.) granted Faulkner's motion (R. 7-9). In so doing, the court agreed that Leonardi demonstrated that the building complied with the applicable Tenement House Law (R. 7). The court also rejected Fein's opposing opinion, that if the ball of one's foot came into contact with the worn bullnose section, there would be insufficient traction, because Carrion never testified that the ball of his foot made contact with the tread's nosing (R. 8). The court held that Carrion's allegations were tantamount to the legion of cases in which the plaintiff claims that the reason for his fall was that the treads were smooth (R. 8). The First Department affirmed dismissal finding that "[t]he worn marble edge of the step on which plaintiff allegedly slipped is not an actionable defect." Id at 456. The court further observed that "plaintiff denied that any debris on the step caused his fall, and the photographs did not reveal any major defects." Id. Argument The condition that allegedly caused Carrion's fall is nonactionable "To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon v. City of New York, 66 N.Y.2d 1026 (1985). While it is well established that a property owner has a duty to keep its property in a 4 "reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," Basso v. Miller, 40 N.Y.2d 233, 241 (1976), it is equally important to remember that a landlord is not the insurer of the safety of its tenants and their visitors, see Nal/an v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519 (1980); but merely has a duty to exercise reasonable care in maintaining its property in a reasonably safe condition. 'ro impose liability on a defendant for a slip and fall on an allegedly dangerous condition, there must be evidence that the dangerous condition existed, and proof that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time. Putnam v. Stout, 38 N.Y.2d 607 (1976); Arnold v. New York Ciry Hous. Auth., 296 A.D.2d 355 (1st Dep't 2002); Frank v. Time Equities, 292 A.D.2d 186 (1st Dep't 2002). lVIoo4J v. F. W Woolworlh Co., 288 A.D.2d 446 (2d Dep't 2001). Where, as here, the plaintiff fails to demonstrate that a dangerous condition existed or that the building owner created the defect or had actual or constructive notice of it, summary judgment is proper. See Savage v. Anderson's Frozen Custard, 100 A.D.3d 1563, 1564 (4th Dep't 2012); Kotsakos v. Tsirigotis, 28 A.D.3d 426, 427 (2d Dep't 2006) ("plaintiff failed to present evidence to support a common-law negligence claim that a dangerous condition existed on the subject stairway"); MoksZki v. Pratt, 13 A.D.3d 709, 710 (3d Dep't 2004). A. The allegedly worn tread condition was not an actionable defect. This Court, and others, have consistendy held that proof that a floor is 'inherendy slippery,' standing alone, is insufficient to support a claim of negligence. Kline v. Abraham, 178 N.Y. 377, 381 (1904); Mutphy v. Conner, 84 N.Y.2d 969, 972 (1994); Caicedo v. Sanche~ 116 A.D.3d 553 (1st Dep't 2014); Richards v. Kahn's Realry Corp., 114 A.D.3d 475, 476 (1st Dep't 2014); F!Jnn v. Haddad, 109 A.D.3d 1209 (4th Dep't 2013); Fallon v. Duffy, 95 A.D. 3d 1416, 1418 (3d Dep't 2012); Rajwan v. 109-23 Owners Corp., 82 A.D.3d 1199, 1200 (2d uep't 2011). In Mutphy, the plaintiff slipped and fell on one of two types of tile in the defendant's shopping mall. Mutphy, 84 N.Y.2d at 971. Relying on plaintiffs expert, who opined that the coefficient of friction of the tiles where the plaintiff fell failed to conform to industry standards, the Supreme Court denied the defendants' summary judgment. Id. Finding that "plaintiffs' expert's opinion was essentially that plaintiff fell because the floor was too slippery," the Appellate Division reversed and granted the defendants' motions. Id. On an appeal to this Court, the plaintiff argued that the surface on which the plaintiff "fell was inherendy dangerous." Id. In affirming the Appellate Division's decision, this Court observed that the "[p ]laintiff offers no evidence of the reason for her fall other than the tiles being smooth." The rule of law that has developed in the intervening years demonstrates "that absent competent evidence of a defect in the surface or some deviation from relevant industry standards, the mere fact that a plaintiff has fallen on a floor that is inherendy 5 smooth, and thus slippery, will impose no liability." Portanova v. Trump TqjMahaIAssocs., 270 A.D.2d 757, 758 (3d Dep't 2000), Iv. den'd 95 N.Y.2d 765 (2000). And, indeed, Carrion concedes that it is appropriate to dismiss slip and fall cases "when the alleged defect and cause of the fall is no more than the slippery nature of marble stairs or floors in their natural condition." See DiJoseph Br. at p. 13. Carrion claims, however, that he "offered credible expert engineering proof [to show] that the condition complained of was not slipperiness alone." See DiJoseph Br. at p. 13. The evidence in this case reveals that there was no actionable condition. At the outset, the First Department's decision in Cam'on does not layout a new or relaxed standard for dismissing actions where the plaintiff slips on a marble tread. In Sims v. 3349 HullAvenue Realty Co. ILC, 106 A.D.3d 466, 467 (1st Dep't 2013), the First Department seemingly extended Murpf?y v. Conner writing that a "worn marble tread is not an actionable defective condition."3 See DiPini v. 381 E. 160 Equities LLC, 121 A.D.3d 465 (1st Dep't 2014); Savio v. Rose Flower Chinese Rest., Inc., 103 A.D.3d 575, 576 (1 st Dep't 2013) ("a worn and slippery step, at the entrance to a restaurant, was not actionable"); Cf Babich v. RG.1. Rest. Cop., 75 }\D3d 439 (1st Uep't 2010) ("[T]he injured plaintiffs 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"). But the following year, the First Department affirmed denial of summary judgment where the plaintiff alleged "that he fell because the edge of the step was worn." Hernandez v. Aldus III Assoc., LP, 115 A.D.3d 529 (1st Dep't 2014); Landahl v. City of Buffalo, 103 A.D.3d 1129 (4th Dep't 2013) ("Although U&S contends that a slip on a smooth marble step is not actionable that contention is of no n10ment inasmuch as plaintiffs allege that plaintiff fell on a stair that was worn and cupped"). To reconcile the differing conclusions between Sims and Hernande~ in its recent decision in Johnson v. Try the Place, LLC, 134 A.D.3d 569 (1st Dep't 2015), the First Uepartment observed that although the defendant conceded that the tread of the fifth step was worn, that condition was not actionable where it appeared to have been the result of normal wear and tear. Thus, in deciding Carrion, the First Department did not misapply and misinterpret "the legal principles and authorities relevant to premises cases." See DiJoseph Br. at p. 12. On the contrary, it is evident that the trial court and First Department relied on the photographs and measurements of the tread along with Carrion's testimony that the tread was shaved or worn down as evidence that the tread was not in an actionable defective condition. Maas v. Cornell Univ., 94 N.Y.2d 87, 91 (1999) (While the opposing party's evidence should be viewed in a light most favorable, factual claims flatly 3 Stanley Fein's opinion "that the steps were worn and could cause one to slip" was deemed speculative. Sims, 106 A.D.3d at 467. 6 contradicted by documentary evidence are not entitled to such consideration). Thus, the lower courts determined this case as they should: based on the facts and evidence. Relying on Carrion's testimony that he fell due to the worn edge of the step, Faulkner demonstrated that there was no actionable defect at the building. Charlry v. Goss, 12 N.Y.3d 750, 751 (2009) (a movant may demonstrate prima facie entitlement to summary judgment based on plaintiffs deposition testimony); Fishman v. Westminster House Owners, Inc., 24 A.D.3d 394 (1st Dep't 2005). Specifically, based on Carrion's testimony that the tread was rounded and worn off, Leonardi took photographs and measured the thickness of the edge of the tread (R. 213-214). Leonardi attested that the nosing was 3/4" thick consistently across the edge of the tread (R. 213-214, 224, 234, 245). Indeed, the photographic evidence, which Carrion concedes accurately reflected the condition of the tread, confirms that the edge of the tread was not rounded, shaved, or worn down in appearance (R. 224, 234, 235, 236, 245). See Shiles v. Carillon Nursing and Rehabilitation Ctr., ILC, 54 A.D.3d 746 (2d Dep't 2008) ("Although the injured plaintiff, in her deposition testimony, described the alleged elevation differential as two inches, photographs of the sidewalk, which she confirmed fairly and accurately represented the accident site, indicate that the elevation differential was slight"); Riser v. New York Ciry Hous. Auth., 260 A.D.2d 564 (2d Dep't 1999). Thus, the photographs confirm Leonardi's measurements and opinion that the tread "maintain [ed] the thickness ... at its edging where [Carrion] had stepped" (R. 214). See Cintron v. New York City Tr. Auth., 77 A.D. 3d 410, 411 ("photographs of the stairs at the time of the accident do not reveal a trap or major defect"); Pena v. Women's Outreach, 35 A.D.3d 104, 109 (1st Dep't 2006) (Even though the plaintiffs expert claimed that the treads were "worn and discolored," "photographs of the stairs similarly failed to depict any dangerous or defective condition"). Thus, both the measurements and photographs demonstrated that the nosing was not worn. Rather, it may have been slippery merely because it was a marble tread. Richards v. Kahn's Realty Cop., 114 A.D. 3d 475 (1st Dep't 2014); Kociecki v. EOP-_lvlidtown Props., LLC, 66 A.v.3d 967, 967 (2d Uep't 2009); Portanova v. '1 rump lCy' Mahal Assocs., 270 A.D.2d 757, 758 (3d Dep't 2000) ("marble, although a commonly used material for floors and stairways in public buildings, stores and hotels, has a slippery surface and requires the use of care to avoid slipping"). Because the court was imbued with the authority to review the authenticated photographs and determine that no defect existed, the lower court and Appellate Division's determination that the defect was nonactionable, was proper. See Hutchinson v. Sheridan Hill House Cop., 26 N.Y.3d 66, 79 (2015). Separately, Faulkner demonstrated that the condition did not constitute any applicable or alleged code violation. Carrion alleged that the worn condition violated the MDL and Administrative Code §§ 27-127, 27-128 and 27-375 (R. 21-22, 34). Whether a particular building code provision is applicable to an alleged defect is a 7 question of law to be determined by the Court, and not a fact question for a jury. See Messina v. City of New York, 300 A.D.2d 121 (1st Dep't 2002) ("The interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court"); Gaston v. New York City Hous. Auth., 258 A.D.2d 220, 224 (1st Dep't 1999). And "it is reversible error to permit a party to attempt to prove negligence by expert testimony regarding the meaning and applicability of a statute imposing a standard of care." See Rodriguez v. New York City Hous. Auth., 209 A.D.2d 260 (1st Dep't 1994). At the outset, the Administrative Code and the MDL do not apply to the building because it was constructed in 1921 (R. 170, 213, 247). See Rivera v. Bi!Jnn Realty Corp., 85 A.D.3d 518, 519 (1st Dep't 2011) ("Defendant also submitted evidence showing that the building was constructed in 1921 and was governed by the provisions of the Tenement House Law and not the Administrative Code of the City of New York or the Building Code"); Altschuler v. Gramatan Mgt., Inc., 27 A.D.3d 304 (1st Dep't 2006); Wyckoff v. Jujamryn Theaters, Inc., 11 A.D. 3d 319 (1st Dep't 2004) ("The Building Code provision regulating 'interior stairs' on which plaintiffs expert relies (Administrative Code of City of NY § 27-375) does not apply to stairs located in aisles (Administrative Code § 27-232 defining 'interior stair' and 'exit'), and is in any event inapplicable because the theatre was constructed in 1921"). Further, while Faulkner testified that he undertook renovations, he established that the building did not require a new Certificate of Occupancy (R. 170, 193). Cf Powers v. 31 E. 31 ILC, 24 N.Y.3d 84, 92 (2014) ("defendants should have established that the roof was finished with gutters in 1909 and that the 1979 conversion did not trigger an obligation to bring the entire building, including the unaltered setback roof, into compliance with the 1968 Building Code"); Lesocovich v. 180 lviadison Ave. Corp., 81 N.Y.2d 982, 984 (1993); Pappalardo v. New York Health & Racquet Club, 279 A.D.2d 134, 140 (1 st Dep't 2000) (The Court of Appeals agreed in Lesocovich that triable issues of fact existed regarding "whether the alterations and repairs made to the premises brought it within the purview of the Code"). 'Thus, Faulkner affirmatively established that the building was regulated by the Tenement House Law and that the treads and staircase conformed to the applicable law (R. 214). In opposition, Fein did not contest, or even address, the Tenement House Law's applicability (R. 275-277). Mortillaro v. Rochester General Hosp., 94 A.D.3d 1497,1500 (4th Dep't 2012) ("Plaintiff failed to raise a triable issue of fact in opposition inasmuch as her expert failed to dispute those conclusions"). But even if the court lower courts had entertained Carrion's code claims, they still would have been insufficient to demonstrate that an actionable condition existed. 8 Administrative Code § 27-375 regulates "interior stairs," which the Building Code defines as being a "stair within a building that serves as a required exit."4 To qualify as a means of egress, as defined in § 27-232, the staircase must lead "from the interior of [the] building to an open exterior space." Martin v. DNA Rest. Corp., 103 A.D. 3d 575 (1st Dep't 2013); Cusumano v. City of New York, 15 N.Y.3d 319, 324 (2010); Gibbs v. 3220 Netherland Owners Corp., 99 A.D. 3d 621 (1st Dep't 2012) ("the stairs on which plaintiff allegedly slipped and fell Oeading from the first floor to the lobby) were not "exit" stairs within the meaning of either paragraph 6.4.1.7.1 (g) of section C26- 292.0 of the 1938 Building Code (Administrative Code of City of N.Y. § C26-292.0). Because the staircase did not lead from the building directly to the outdoors, it would not be considered an egress staircase and Administrative Code § 27-375 does not apply (R. 174). DeRosa v. City of New York, 30 A.D.3d 323, 326 (1st Dep't 2006). Further, Administrative Code §§ 27-127, 27-128, which have since been repealed, are nonspecific code provisions that have been adjudged insufficient for liability. Richards, 114 A.D.3d at 476; Centeno v. 575 E. 137th St. RealEstate) Inc., 111 A.D.3d 531 (1st Dep't 2013) ("27- 127 and 27-128 were merely non-specific safety provisions"). Although this point was raised in Faulkner's moving papers, Carrion failed to address it (R. 14-15). Ignoring the fact that the MDL and Administrative Code would not apply to the building because they were enacted after the building was erected, Fein summarily opined that provisions were violated (R. 276,277). Because the Code provisions do not apply to this building, and even if the building was governed under the MDL and Building Code, the sections on which Carrion relied are inapplicable, Carrion failed to raise an issue of fact regarding whether Faulkner was negligent. Because mere compliance with Code does not end the inquiry on whether a defendant maintains his property in a reasonable condition, J\;fr. Fein made other statements to infer negligence without reference to any statute, code, standard or rule. Kellman v. 45 Tiemann Assocs.) Inc., 213 A.D.2d 151 (1st Dep't 1995), aJfd 87 N.Y.2d 871 (1995). Carrion's opposition also failed to raise an issue of fact regarding whether the allegedly worn marble steps constituted a dangerous condition, however, because Fein failed to refute Leonardi's measurements or opinion that the edge of the step, where Carrion slipped, was a uniform thickness (R. 213-214, 224, 234, 245, 275-277). Vogt v. Herstik, 128 A.D.3d 602, 603 (1st Dep't 2015). Fein's additional comments were equally unavailing. Fein stated, without regard to any code, law or statute, that unspecified "accepted engineering safety practice ... requires the placement of non-skid strips to prevent treads from being unreasonably and dangerously slippery" (R. 276). But in Hotaling v. City of New York, 55 A.D.3d 396, 397 (1st Dep't 2008), affd 12 N.Y.3d 862 (2009), the First Department wrote: 4 Id. at §§ 27-232, 27-355. 9 The legal issue is not whether there was a way to construct the building in order to avoid any possibility of people being hit by opening doors in the manner experienced by plaintiff; it is whether the design of the building violated building safety standards applicable at the time it was built. Because such standards must take into account numerous safety concerns, they will not always be able to eliminate every source of possible injury. If a building was constructed in compliance with code specifications and industry standards applicable at the time, the owner is under no legal duty to modify the building thereafter in the wake of changed standards. Because Faulkner demonstrated that even if those provisions applied, the treads did not violate the MDL or Administrative Code and Carrion otherwise failed to raise an issue of fact, the Appellate Division's conclusion that "[t]he worn marble edge of the step on which plaintiff allegedly slipped is not an actionable defect," was consistent with the decisional law of this State. Carrion, 129 A.D.3d at 456. Fein also pronounced that "good and accepted engineering safety practice" would require the steps to have a coefficient of friction of .70 (R. 276). But that claim is baseless where, as here, Fein failed to identify the standard on which he relied. Mossberg v. Crow's I'Jest AJar. if Oceanside, 129 A.D.3d 683, 684 (2d Dep't 2015) ("the expert failed to identify the basis for his 'coefficient of friction value,' which he apparently utilized as a standard to arrive at certain conclusions"); Sarmiento v. C & E Assoc., 40 AD3d 524 (1st Dep't 2007) ("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'''); Jenkins v New York City Hous. Auth., 11 A.D.3d 358, 360 (1st Dep't 2004) (no triable issue where expert did not identify the basis for the 0.5 coefficient-of-friction value he utilized as a standard); Reid v. Schalmont School Dis!., 50 A.D.3d 1323, 1325 (3d Dep't 2008). Carrion admits that photographic proof is sufficient to demonstrate that a dangerous condition does not exist. See DiJ oseph Br. at p. 8. Neither party contests the authenticity and adequacy of the photographs. Because the photographs here clearly depict the conditions on the step and show that there was no actionable defect, and there is no evidence that the treads violated any code, law or statute, the First Department's decision should be affirmed. Although Carrion argues that the Appellate Division "chose to simply ignore the issue of notice," DiJoseph Br. at p. 23, because Faulkner moved on and demonstrated that the condition was not actionable, notice was not relevant (R. 13) . See Hutchinson, 26 N.Y.3d at 80; Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 228 (1987); Alnashmi 10 v. Certified Ana!Jtical Group, Inc., 89 A.D.3d 10, 19 (2d Dep't 2011). Nevertheless, Faulkner first established that the condition was not actionable and then demonstrated that he did not have actual or constructive notice of it (R. 12-15). 'This Court has held that defendants who do not have actual notice of a hazardous condition should not be liable for an incident that occurs. See Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986). Actual notice may be found when the defendant created the condition or was aware of its existence. Pianforini v. Kelties Bum Steer, 258 A.D.2d 634 (2d Dep't 1999). Sufficient and detailed notice must be given to defendants as to the specific hazard, including an exact location. See Simmons v. Metropolitan Life Ins. Co., 84 N.Y.2d 972 (1994); Mitchell v. New York Univ., 12 A.D.3d 200 (1st Dep't 2004). It is incumbent upon the plaintiff to demonstrate the "identity of the persons to whom notice of the condition was allegedly given and when and how it was given." Carlos v. New Rochelle Municipal Hous. Auth., 262 A.D.2d 515 (2d Dep't 1999). Aside from Faulkner's argument that the condition was not actionable and contrary to Carrion's claim that Faulkner did not demonstrate lack of notice, the record evidence and Leonardi's affidavit squarely addressed Faulkner's lack of notice. See DiJoseph Br. at p. 20. At the outset, there is no viable claim that Faulkner created the condition. Rather, Carrion admits that the worn condition was one that developed through use over the years (R.276). Further, Carrion admitted both that he did not complain to Faulkner or anyone associated with the building about the stairs and that he knew of no one who did (R. 105). Carrion's argument that the building's employees would have observed the condition when they made regular inspections of the steps ignores the fact that without proof of a dangerous condition, anything that the employees observed would not be sufficient to impute notice of a hazard. Thus, Faulkner detllonstrated that he did not have actual notice of a dangerous condition. With respect to constructive notice, this Court has reiterated the well-setded standard that, "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon, 67 N.Y.2d at 837; Matcovs~ v. Dqys Hotel, 10 A.D.3d 557, 558 (1st Dep't 2004). A defendant will not be liable unless, in the exercise of due care, he should have had notice of the hazardous condition. See Simmons, 84 N.Y.2d at 972. If the condition exists for such a period of time that, in the exercise of reasonable care, a person would have remedied it, then the defendant will be charged with constructive notice. See Trt9/11o v. Riverbqy Corp., 153 A.D.2d 793 (1st Dep't 1989). In his attempt to establish constructive notice, Carrion relied on Fein's affidavit that the condition existed for a number of years and that the condition constituted a 11 violation (R. 276). As described above, however, the allegedly worn condition was not an actionable defect. Thus, by virtue the condition not being actionable, there is no need to address notice. Kline, 178 N.Y. at 381 (If marble steps were slippery by reason of their smoothness or polish, that fact was as apparent to plaintiff as to defendants); DeMartini v. Trump 767 5th Avenue, ILC, 41 A.D.3d 181, 182 (1st Dep't 2007) ("It does not avail plaintiff that defendants may have had notice of the inherently slippery nature of this marble floor"). Indeed, in DeMartini the First Department established that a . ~ defendant's notice of an inherently slippery floor does not impute liability. See Sims, 106 A.D. 3d at 467 ("That defendant's superintendent was aware that the marble step was worn is irrelevant where the alleged defective condition is not actionable"). Thus, without evidence that the allegedly worn tread had become dangerous, Faulkner duly demonstrated that he did not have constructive notice of a dangerous condition. Notably, because even if Faulkner had violated any of the code provisions Carrion relied on, his lack of notice would still be a defense under the circumstances, Faulkner demonstrated entitlement to summary judgment. While Carrion argues that the lower courts improperly engaged in credibility determinations and did not believe Stanley Fein, there is no evidence that the courts disregarded the expert's affidavit because of anything other than its content. The predicate for opinion testimony is facts in evidence. Indeed, an expert's opinion must be based on facts in the record or personally known to the witness. Hambsch v. New York City Transit Auth., 63 N.Y.2d 723 (1984); Samuel v. Aroneau, 270 A.D.2d 474 (2d Dep't 2000). Thus, an expert's opinions should be limited by the plaintiffs testimony and the expert's inspection. Lee v. Port Chester Costco Wholesale, 82 A.D.3d 842, 843 (2d Dep't 2011). The appellate divisions have uniformly and consistently rejected expert opinions that are conclusory and unsupported or contradicted by the record. See Fall v. Guseynov, 126A.u.3d 446 (lst Dep't 2015); Dalder v. Incorporated Village of Rockville Centre, 116 A.D.3d 908, 910 (2d Dep't 2014); Wilk v. James, 107 A.D.3d 1480, 1498 (4th Dep't 2013); Jones v. G & I Homes, Inc., 86 A.D.3d 786, 788 (3d Dep't 2011); Roimesher v Colgate Scaffolding & Equip. Corp., 77 Lf\.D.3d 425, 426 (1st Dep't 2010); Encarnacion v. Tegford Realty ILC, 60 A.D.3d 581, 582 (1st Dep't 2009) (While plaintiff's expert claimed that the slope contribute to the accident, "plaintiff, in her bill of particulars and deposition testimony, did not claim that the accident was caused by the degree of slope to the next step"). In this case, Fein did not read Carrion's deposition testimony before rendering his analysis and opinion (R. 274- 277). Instead, Fein relied on his own opinions to conclude that the staircase was inherently dangerous (R. 276-277). Thus, Fein's conclusory statement that "the ball of one's foot coming into contact with the worn bullnose section would lack proper traction" did not suffice to raise an issue of fact. Indeed, even if everything Fein stated 12 was taken as true, his affidavit would still have been insufficient to raise an issue of fact because he could not connect any of the defects he identified with Carrion's description of the fall (R. 75,92,94). See Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435 (2d Dep't 2006) ("The expert's affidavit did not support the complaint's sole allegation of negligence, i.e., that the plaintiff tripped and fell on debris"); Koller v. Leone, 299 A.D.2d 396, 397 (2d Dep't 2002) (''While the plaintiff offered expert evidence that the concrete step failed to conform to the applicable provisions of the N ew York City Building Code, the expert's assertion that this alleged defect was a proximate cause of the plaintiffs accident was not based on admissible evidence in the record, was purely speculative, and was insufficient to raise a triable issue of fact"). And Fein's attempt to demonstrate that the alleged defects he found were the proximate cause of the accident could not supplant Carrion's admissions. l'hus, both the trial court and First Department, respectively, properly dismissed Carrion's complaint and affirmed that dismissal. And Carrion has failed to demonstrate that he has grounds on which this Court should consider granting leave. Conclusion Given the state-wide importance of this issue, Faulkner contests this Court's preliminary decision to examine this matter on an alternate and expedited procedure under Rule 500.11. We would, instead, prefer the opportunity to submit to a full briefing schedule and oral argument. Indeed, given the frequency with which this matter arises, other counsel should be heard on this matter. Nevertheless, because Faulkner demonstrated, through Carrion's testimony, authenticated photographs and measurements of the offending tread that the condition that allegedly caused Carrion's fall was nonactionable as a matter of law, this Court should affirm the Appellate Division's decision. Respectfully submitted, GANNON, ROSENFARB & DROSSMAN Lisa L. Gokhulsingh cc: Arnold E. DiJ oseph 13