| Daniarov v New York City Tr. Auth. |
| 2009 NY Slip Op 03784 [62 AD3d 480] |
| May 12, 2009 |
| Appellate Division, First Department |
| Stela Daniarov, Respondent, v New York City TransitAuthority, Appellant. |
—[*1] Mark M. Basichas & Associates, P.C., New York (Aleksey Feygin of counsel), forrespondent.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered January 10, 2008,which, in an action for personal injuries allegedly sustained when plaintiff slipped on the thirdstep from the bottom of a staircase in defendant's subway station, denied defendant's motion forsummary judgment dismissing the complaint, unanimously reversed, on the law, without costs,and the motion granted. The Clerk is directed to enter judgment in favor of defendant dismissingthe complaint.
Defendant established its prima facie entitlement to judgment as a matter of law bysubmitting evidence including, inter alia, plaintiff's testimony that although there was nohandrail to break her fall, she did not know how she fell or what caused her to slip.
In opposition, plaintiff submitted an affidavit from her expert, who, in contrast to plaintiff'stestimony, found a handrail present at the point where plaintiff allegedly slipped, but assertedthat alleged violations of the New York City Building Code with respect to the handrail causedplaintiff's accident. Plaintiff's failure to testify as to what caused her accident is fatal to her causeof action (see Telfeyan v City of NewYork, 40 AD3d 372 [2007]), and such failure cannot be cured by her expert's opinionthat the subject handrails violated the Building Code, even if applicable, in the absence of anyevidence connecting the alleged violations to plaintiff's fall (see Reed v Piran Realty Corp., 30 AD3d 319 [2006], lvdenied 8 NY3d 801 [2007]; see alsoRidolfi v Williams, 49 AD3d 295 [2008]). Concur—Andrias, J.P., Friedman,Buckley, Acosta and DeGrasse, JJ.