| Houck v Simoes |
| 2011 NY Slip Op 05452 [85 AD3d 967] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Deborah J. Houck, Appellant, v Idalio Simoes,Respondent. |
—[*1] Tarshis, Catania, Liberth, Mahon & Milligram, PLLC, Newburgh, N.Y. (Rebecca BaldwinMantello and Hobart Simpson of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an orderof the Supreme Court, Orange County (Bartlett, J.), dated May 24, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint, and (2), as limited by herbrief, from so much of an order of the same court dated July 14, 2010, as denied that branch ofher motion which was for leave to renew her opposition to the defendant's motion for summaryjudgment dismissing the complaint.
Ordered that the order dated May 24, 2010, is affirmed; and it is further,
Ordered that the order dated July 14, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff allegedly fell on an interior, carpeted staircase of an apartment she leased fromthe defendant owner. The defendant established his entitlement to judgment as a matter of law bydemonstrating, prima facie, that he did not create or have actual or constructive notice of thealleged hazardous condition (see Nelsonv Cunningham Assoc., L.P., 77 AD3d 638, 639-640 [2010]; Powell v Pasqualino, 40 AD3d725, 725 [2007]). In opposition, the plaintiff failed to raise a triable issue of fact. Theplaintiff failed to show that her "expert" Anthony Mellusi was qualified to provide expertevidence in this case (see generallyRiccio v NHT Owners, LLC, 79 AD3d 998, 1000 [2010]; de Hernandez v Lutheran Med. Ctr., 46AD3d 517, 517-518 [2007]; Hofmann v Toys "R" Us, NY Ltd. Partnership, , 272AD2d 296 [2000]). In any event, Mellusi's opinion based upon his inspection of the staircasemore than a year and a half after the accident was insufficient to raise a triable issue of fact (see Lal v Ching Po Ng, 33 AD3d668, 668-669 [2006]). Mellusi's opinion based upon his review of the photographs that theplaintiff took four days after her accident was conclusory and insufficient to raise a triable issueof fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Mastroianni v State of New York, 35AD3d 674, 675 [2006]). Accordingly, the Supreme [*2]Courtproperly granted the defendant's motion for summary judgment dismissing the complaint.
The Supreme Court also properly denied that branch of the plaintiff's motion which was forleave to renew her opposition to the defendant's motion for summary judgment, since she did notsubmit evidence which would change the prior determination (see CPLR 2221 [e] [2]).Angiolillo, J.P., Balkin, Dickerson and Cohen, JJ., concur. [Prior Case History: 27 Misc 3d1227(A), 2010 NY Slip Op 50924(U).]