| Guiterrez v Iannacci |
| 2007 NY Slip Op 06634 [43 AD3d 868] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Humberto Guiterrez et al., Respondents, v Angelo Iannacciet al., Appellants. |
—[*1] Proner & Proner, New York, N.Y. (Tobi R. Salotto of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Queens County (Taylor, J.), dated December 7, 2006, which deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The defendants' argument that they were not liable for injuries sustained by the plaintiffHumberto Guiterrez (hereinafter the plaintiff) because they were out-of-possession landlords wasraised for the first time in their reply papers. Since the plaintiffs did not have a fair opportunity torespond to that contention, the argument is not properly before us and will not be addressed(see Johnston v Continental Broker-Dealer Corp., 287 AD2d 546 [2001]; Tobias vManginelli, 266 AD2d 532 [1999]).
The defendants demonstrated their prima facie entitlement to summary judgment through theplaintiff's deposition testimony that he was unable to identify what caused him to slip (see Birman v Birman, 8 AD3d 219[2004]). In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiff allegedthat he would not have fallen if the defendants had equipped his front steps with handrails, andthe plaintiffs' expert opined that handrails were required by nationally accepted safety standards."However, the plaintiff[s] failed to present any evidence connecting any allegedly unsafecondition to [his] fall" (id. at 220; see Grob v Kings Realty Assoc., 4 AD3d 394 [2004]). [*2]Therefore, the Supreme Court erred in denying the defendants'motion for summary judgment. Crane, J.P., Goldstein, Dillon and Carni, JJ., concur.