| Rios v New York City Hous. Auth. |
| 2008 NY Slip Op 01520 [48 AD3d 661] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Jose Rios, Appellant, v New York City Housing Authority,Respondent. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Herzfeld & Rubin, P.C. [MiriamSkolnik and David B. Hamm], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Jackson, J.), dated August 16, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint and denied, as academic, hiscross motion to strike the defendant's answer for failure to comply with a court order.
Ordered that the order is affirmed, with costs.
The plaintiff alleges that he was injured when he slipped and fell on a cracked or broken stepwhile descending a stairwell in a building owned and operated by the defendant in Brooklyn. TheSupreme Court granted the defendant's motion for summary judgment and denied, as academic,the plaintiff's cross motion to strike the defendant's answer. We affirm.
The defendant met its initial burden on its motion for summary judgment by demonstratingits lack of actual or constructive notice of the cracked step. The defendant made this showing bysubmitting the deposition testimony of its supervisor of janitorial caretakers and the janitorialcaretaker working on the date of the accident, as well as an affidavit of the assistant buildingsuperintendent, all of whom denied observing a chipped or broken step despite numerousinspections of the stairwell prior to the plaintiff's accident (see Goldman v Waldbaum, Inc.,248 AD2d 436 [1998]). Additionally, the defendant submitted the plaintiff's depositiontestimony, in which he admitted that [*2]the first time that henoticed a defect in the step was after he fell, even though he traversed the stairwell "more thanonce or twice" in the month preceding his accident, as well as once or twice each week for nearlyfive years prior to that period.
The plaintiff failed to raise a triable issue of fact in opposition to the defendant's showing ofentitlement to judgment as a matter of law. The plaintiff's submission of photographs of thebroken step in the stairwell, taken more than 16 weeks after the accident, was insufficient to raisea triable issue of fact because the photographs were not taken within a reasonable time of theplaintiff's accident (see Rivera v NewYork City Tr. Auth., 22 AD3d 554 [2005]; Saks v Yeshiva of Spring Val., 257AD2d 615 [1999]). Additionally, the plaintiff's submission of an expert engineer's affidavit wasnot sufficient to raise a triable issue of fact since his opinion primarily relied on thesephotographs and the expert never visited the accident site (see Leggio v Gearhart, 294AD2d 543 [2002]; Avella v Jack LaLanne Fitness Ctrs., 272 AD2d 423 [2000]). Theexpert's opinion constitutes "mere conclusions, expressions of hope or unsubstantiatedallegations or assertions," which are insufficient to satisfy the plaintiff's burden (Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]). Accordingly, the Supreme Court properlygranted the defendant's motion for summary judgment and denied, as academic, the plaintiff'scross motion. Ritter, J.P., Santucci, Covello and Carni, JJ., concur.