Plaintiff fell down a flight of stairs at defendant dentists office. Plaintiff maintains that she fell because it was dark and she did not see water on the steps. She concluded that the fall had to have been caused by the water because her pants were wet after the fall. Defendant moved for summary judgment motion pursuant to CPLR 3212 requesting dismissal on the ground that it did not have notice of the water on the steps. Plaintiff opposed the motion and cross-moved for leave to amend the bill of particulars to include the claim that plaintiff fell due to poor lighting.

In the present action, stated the court, defendant must submit evidence that it maintained its premises in a reasonably safe condition as a matter of law, that it neither created the allegedly dangerous condition nor had actual or constructive notice thereof. The Second Department has also held where insufficient lighting is alleged, it is incumbent upon defendant to also show that the lighting condition was not a proximate cause of the alleged injuries.

Defendant Cites Plaintiffs Testimony

Defendant has alleged that it did not have actual or constructive notice of the defective condition. In support of this, defendant submitted plaintiffs deposition testimony in which she testified that she did not know what caused her to fall as she was descending from the second floor landing. Plaintiff also testified that while she was ascending from the first floor to the second floor landing just 15 to 20 minutes earlier, she did not see any liquid or water on the stairs. By plaintiffs testimony, defendant established that it did not have constructive notice of the presence of water.

However, defendant failed to establish that it did not create or have actual notice of a defective condition by submitting an affidavit or the testimony of an employee as to the proper maintenance of the stairway and that it had not received any complaints.

In any event, plaintiffs own testimony that she did not know the cause of the accident and she did not see the water before she slipped, but apparently it was there, because her pants got wet, would require a jury to speculate as to what was the actual cause of her fall, whether it was a misstep, water or something else. The fact that plaintiff cannot establish causation is fatal to her complaint. Therefore, plaintiffs own testimony that she did not know what had caused the accident supports a finding that, as a matter of law, the allegedly defective condition was not a proximate cause of plaintiffs accident.

Claim of Poor Lighting Dismissed

In opposition, plaintiff raised for the first time, an issue of fact with respect to the sufficiency of the lighting of the steps. However, this allegation is not supported by plaintiffs deposition testimony. Plaintiff did not testify at her deposition that she could not see the step and as a result she misstepped. Although, plaintiff testified that it was dark and that the only light available came from the first floor reception area and from a window between the landing and the second floor, plaintiff has failed to provide evidence from an expert showing that such lighting in the stairwell was insufficient. Plaintiffs affidavit has raised the issue of lighting to avoid the consequences of her earlier deposition admission and it is tailored to raise a triable issue of fact in an attempt to survive this summary judgment motion. Hence, plaintiff has failed to meet its burden.

The complaint was dismissed.

Torain v. Labiner, NYLJ 12/22/05 (Civil Court, Bronx County) (AARONS, j)