| Arce v 1704 Seddon Realty Corp. |
| 2011 NY Slip Op 08482 [89 AD3d 602] |
| November 22, 2011 |
| Appellate Division, First Department |
| Luis Arce, Respondent, v 1704 Seddon Realty Corp. et al.,Appellants. |
—[*1] Kerry B. Stevens, White Plains, for respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered May 13, 2011, whichdenied defendants' motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, and the motion granted. The Clerk is directed to enterjudgment in favor defendants dismissing the complaint.
Defendants established their entitlement to judgment as a matter of law in this action whereplaintiff alleges that he was injured when, while descending an interior staircase in defendants'building, he slipped on a pool of clear liquid and fell down the stairs. Defendants demonstratedthat they neither created nor had notice of the allegedly defective condition of the stairs.
In opposition, plaintiff failed to raise a triable issue of fact. There was no evidence thatdefendants were notified of any clear liquid on the day of the accident or that the clear liquid waspresent for a sufficient period of time to allow defendants' employees an opportunity to discoverand remedy the problem (see Gordon v American Museum of Natural History, 67 NY2d836 [1986]; Wallace v Doral Tuscany Hotel, 302 AD2d 255 [2003]). The clear liquid thatcaused plaintiff's fall could have been deposited there only minutes before the accident,particularly in light of plaintiff's testimony that the liquid was still dripping from the top step tothe second step (see Rivera v 2160Realty Co., L.L.C., 4 NY3d 837 [2005]).
Furthermore, although plaintiff submitted affidavits from his girlfriend and another tenant ofthe building, who said that the subject stairs were often slippery and strewn with garbage, suchprior observations are insufficient to defeat the motion (see Melendez v New York City Hous. Auth., 23 AD3d 211[2005]).
The report of plaintiff's expert was unsworn and therefore, did not constitute competentevidence sufficient to raise an issue of fact (see Mazzola v City of New York, 32 AD3d 906 [2006]). Even ifwe were to consider the report, his opinions regarding the dangerous and defective condition ofthe stairs due to improper treads and differing heights were irrelevant since [*2]plaintiff's claim was that he slipped because of the clear liquid thatwas present on the top step of the staircase. Concur—Moskowitz, J.P., Renwick,DeGrasse, Abdus-Salaam and RomÁn, JJ.