| Sanders v Morris Hgts. Mews Assoc. |
| 2010 NY Slip Op 00069 [69 AD3d 432] |
| January 7, 2010 |
| Appellate Division, First Department |
| Maxine B. Sanders, Respondent, v Morris Heights MewsAssociates et al., Appellants. |
—[*1] Kelner and Kelner, New York (Gail S. Kelner of counsel), for respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered October 16,2008, which denied defendants' motion for summary judgment, unanimously affirmed, withoutcosts.
Plaintiff was injured in a stairway slip and fall in defendants' building after the handrail gaveway. Defendants met their burden with respect to the alleged slipperiness of the steps. Plaintifftestified that her right foot slipped, but did not indicate any substance that might have caused theslip. This is no more specific than alleging the stairs were slippery due to smoothness, which isnot an actionable defect (Sarmiento v C& E Assoc., 40 AD3d 524, 527 [2007]).
Plaintiff's argument that defendants created the condition by painting the stairs with enamelpaint was made for the first time in opposition to the motion, and was based solely on theaffidavit of her expert who surmised that this was the cause of her slip and fall. That affidavitwas insufficient to raise an issue of fact, as it indicated the expert examined "the stairway"without addressing the particular step on which plaintiff slipped (see Murphy v Conner,84 NY2d 969 [1994]; Sarmiento, 40 AD3d at 526-527). It also failed to reference aspecific standard by asserting a minimum acceptable coefficient of friction (see id. at526; Jenkins v New York City Hous.Auth., 11 AD3d 358, 360 [2004]). For these reasons, plaintiff also failed to raise anissue of fact as to whether defendants violated Administrative Code of the City of New York§ 27-375 (h) in applying enamel over the rubber treads.
Nevertheless, defendants failed to meet their burden of eliminating the factual issue as towhether they breached their duty to inspect the handrail, which was designed to be fastened withscrews underneath to wall brackets, thus constituting "an object capable of deteriorating [that] isconcealed from view" (Hayes vRiverbend Hous. Co., Inc., 40 AD3d 500, 501 [2007], lv denied 9 NY3d 809[2007]). Their witness admitted that defendants had no regular program for inspecting thehandrail (see Peters v Trammell CrowCo., 47 AD3d 419, 420 [2008]), and that the only inspection was conducted by the U.S.Department of Housing and Urban Development every two years. Even assuming defendants canrely on this biennial inspection, this creates an [*2]issue of fact asto whether inspecting the handrail once every two years is reasonable (see Hayes, 40AD3d at 501). Concur—Mazzarelli, J.P., Friedman, Nardelli, Renwick and RomÁn,JJ.