Santiago v. United Artists Communications, Inc.

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about October 27, 1998, which denied defendants’ motion for summary judgment dismissing the complaint in this slip and fall personal injury action, reversed, on the law, without costs, defendants’ motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint. The motion court improperly found that plaintiff’s expert’s 408 affidavit raised a triable issue of fact as to the defective condition of the step. In his affidavit, plaintiffs expert never stated when he conducted his on-site inspection of the step, never compared the results of his on-site inspection with any of the photographs of the step, and never stated that the condition of the step at the time of his inspection was the same as that at the time of the accident (see, Figueroa v Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210). Moreover, plaintiff never established the existence of a dangerous condition, since, prior to her accident and despite the site being heavily trafficked, there were no complaints about the allegedly defective step, no repairs were done on the step, and no building code violations were issued regarding the step. Dismissal should have also been granted given the facts and circumstances presented as they relate the alleged defect to plaintiffs injury. Plaintiffs only testimony as to the cause of the accident was that she lost her footing due to the step not being level. The trivial nature of this alleged defect, a depression of V2 inch which appeared to be shallow and gradual according to plaintiff’s expert and photographic evidence, respectively, outweighed any other factor present, thus warranting a finding that no dangerous or defective condition existed as a matter of law (see, Trincere v County of Suffolk, 90 NY2d 976; Nin v Bernard, 257 AD2d 417; Figueroa v Haven Plaza Housing Dev. Fund Co., supra; Morales v Riverbay Corp., 226 AD2d 271). Concur — Sullivan, J. P., Williams, Mazzarelli and Wallach, JJ.