New York State Court of Claims

New York State Court of Claims

BUSANIC v. THE STATE OF NEW YORK, #2001-001-015, Claim No. 99300, Motion Nos. M-62563, CM-62757


Synopsis


the Court grants defendant's motion for summary judgment and dismisses the claim. In light of this determination, the Court denies claimant's cross-motion for permission to amend her bill of particulars pursuant to CPLR 3025 (b) as moot.

Case Information

UID:
2001-001-015
Claimant(s):
MARY BUSANIC The Court sua sponte amends the claim's caption to delete the Olympic Regional Development Authority as a named defendant. Section 2622 of the Public Authorities Law confers exclusive jurisdiction upon the Court of Claims to hear and determine claims against the Olympic Regional Development Authority for personal injuries or property damages, but the Authority does not enjoy an existence separate and apart from the State of New York (Craig v State of New York, 261 AD2d 683).
Claimant short name:
BUSANIC
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court sua sponte amends the claim's caption to delete the Olympic Regional Development Authority as a named defendant. Section 2622 of the Public Authorities Law confers exclusive jurisdiction upon the Court of Claims to hear and determine claims against the Olympic Regional Development Authority for personal injuries or property damages, but the Authority does not enjoy an existence separate and apart from the State of New York (Craig v State of New York, 261 AD2d 683).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99300
Motion number(s):
M-62563
Cross-motion number(s):
CM-62757
Judge:
Susan Phillips Read
Claimant's attorney:
Cascione, Purcigliotti & Galluzzi, P.C.By: Michael J. Galluzzi, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.By: Kimberly Boucher Furnish, Esq., Of Counsel
Third-party defendant's attorney:

Signature date:
March 26, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion for summary judgment pursuant to CPLR 3212 and on claimant's cross-motion to amend her bill of particulars pursuant to CPLR 3025 (b): Notice of Motion, dated and filed October 16, 2000; Affidavit of Kimberly Boucher Furnish, Esq., sworn to and filed October 16, 2000, with annexed Exhibits A-M; Defendant's Memorandum of Law, undated and rec'd October 16, 2000; Notice of Cross-Motion, dated November 17 and filed November 22, 2000; Affirmation in Opposition and in Support of Cross-Motion of Michael J. Galluzzi, Esq., dated November 17 and filed November 22, 2000, with annexed Exhibits A-E; Affidavit in Opposition and in Reply of Kimberly Boucher Furnish, Esq., sworn to December 20 and filed December 21, 2000; Reply Memorandum of Law, dated December 20 and rec'd December 21, 2000; and the claim, dated July 22 and filed November 16, 1998.

On Saturday, January 18, 1997, claimant Mary Busanic ("claimant") traveled by charter bus from New Jersey to Gore Mountain Ski Center, a ski facility operated by the Olympic Regional Development Authority, with a group of friends for a weekend of skiing (DT-B 15-18).[1] After the charter bus arrived at the ski facility's parking lot, claimant boarded a shuttle bus used to transport skiers from the parking lot to the ski mountain, where she skied for an hour or two before boarding a shuttle bus to return to the parking lot in the late afternoon (DT-B 14-15, 18).

As claimant climbed up the shuttle bus's steps at the front of the bus, she was wearing work boots and carrying ski boots (DT-B 19). She grasped the handrail with her free hand and looked down at the steps, which she described as the "[u]sual black with the rubber" (DT-B 20), as she climbed them. When asked if she experienced "any trouble ascending the steps," claimant responded "No" (DT-B 21).

After a five-minute trip, the shuttle bus reached the parking lot and claimant, who was sitting near the front of the bus, was the second passenger to exit (DT-B 22). When asked if the passenger who preceded her down the steps had "any problems," claimant responded that "[h]e almost slipped. I saw him lose his balance" (DT-B 23).

As claimant described her accident, she "[g]ot up, the person in front of me exited the bus. I was right after him. I was holding the railing with my right hand and as I stepped down on the . . . step, they gave weight and that's when I fell with hitting my bottom on the . . . step, hitting the last step, and then out" (DT-B 23). Claimant testified that she was looking down as she descended the stairs; was holding her ski boots in her left hand; saw nothing on the stairs, although they were wet (DT-B 24-25); and stepped first with her right foot and then placed her left foot on the offending step, which is "when it gave the weight out" (DT-B 25).

When asked what she meant by the phrase "gave weight," claimant explained "like when you press on something and it gives in" but does "[n]ot bend completely" (id.). When asked how the step's "giving weight" made her fall, claimant answered "[t]he weight under me, I guess, from me stepping on it, I wound up sliding" (DT-B 26).

Photocopies of color photographs of the shuttle bus's interior near the front show a corrugated black rubber or rubberlike runner on the floor of a center aisle separating benches positioned along each side of the bus (Affidavit of Kimberly Boucher Furnish, Esq., sworn to and filed October 16, 2000, with annexed Exhibits A-M ["Furnish Aff."], Exh. M [color photocopies of photographs]). The same corrugated black rubber or rubberlike material covers both the floor of the shuttle bus at the top of the stair passage and the treads of the two steps comprising the stairs leading into and out of the bus in the front, opposite the driver's seat. Corrugated white edging marks the verge of the stair passage and the verge of the tread of each of the two steps. Part of the white edging is missing from the verge of both the stair passage and the tread of the bottom step, but not from the verge of the tread of the in-between step on which claimant testified that she slipped, causing her to slide and come to rest in a sitting position on the ground (DT-B 28).[2]

Claimant alleges that a "broken and defective bus step" (claim, ¶ 10) caused her to fall and that defendant State of New York ("defendant" or "the State") is liable for creating this dangerous condition (Notice of Motion, dated and filed October 16, 2000; Furnish Aff., Exh. E [verified bill of particulars], ¶ 4) or for allowing it to exist despite actual and constructive notice (claim, ¶¶ 15, 16). Defendant's liability, claimant clarifies, is not predicated upon her slipping on a wet surface, but rather "[i]t is [claimant's] contention that it was the very worn structure of the steps with their dilapidated covering that caused her to fall" and "[b]ecause the dilapidated step gave in, [claimant] was caused to fall" (Affirmation in Opposition and in Support of Cross-Motion of Michael J. Galluzzi, Esq., dated November 17 and filed November 22, 2000, with annexed Exhibits A-E ["Galluzzi Aff."], ¶ 5).

Defendant moves for summary judgment pursuant to CPLR 3212, arguing that claimant cannot establish that defendant either created or had actual or constructive notice of any putatively dangerous condition allegedly causing her accident (Furnish Aff., ¶ 13; Defendant's Memorandum of Law, undated and rec'd October 16, 2000 ["Mem. of Law"], at 1-4). In fact, defendant disputes the existence of any defect or dangerous condition, characterizing the bus steps as "at most, merely worn and [without] any specific problems which would cause [claimant] to fall" (Mem. of Law, at 2; see also, Furnish Aff., ¶¶ 8-9, 11-12; Exh. M).

Claimant counters that material issues of fact remain regarding the existence of a dangerous condition and defendant's actual and constructive notice of it (Galluzzi Aff., ¶¶ 17-30). Claimant also cross moves for permission to amend her bill of particulars to include a knee injury (Galluzzi Aff., 31-37, Exh. E).

I. Liability for a Slip-and-Fall Accident/Burden of Proof and Production on Motion for

Summary Judgment

In order to make out a prima facie case of negligence, claimant in this slip-and-fall claim must adduce sufficient evidence from which the fact-finder (here, the Court) may find the existence of a dangerous or defective condition proximately causing her to fall and injure herself; and that defendant either created this condition or had actual or constructive notice of it (Browne v Big V Supermarkets, 188 AD2d 798, lv denied 81 NY2d 708). Moreover, "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it;" a general awareness that a dangerous condition may exist is legally insufficient to create constructive notice (Gordon v American Museum of Natural History, 67 NY2d 836, 837).

The proponent of summary judgment, here defendant, must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at 853). Once the proponent of summary judgment has made a prima facie showing, however, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial (Zuckerman v City of New York, supra, at 562; Alvarez v Prospect Hosp., 68 NY2d 320).

While clear enough in the recitation, these precepts present some awkwardness in the application when a defendant tries to show lack of notice on a motion for summary judgment in a slip-and-fall case; i.e., tries to make a prima facie showing that he did not know about that which it is the claimant's ultimate burden to prove that he actually or constructively knew. The bewildering array of fact patterns in slip-and-fall cases and the necessary brevity of many appellate decisions make generalization risky, but there is at least some reason to suppose that a defendant seeking to show lack of notice on a motion for summary judgment must (or at the very least is well-advised to) supply proof of the negative (i.e., affirmative proof that defendant did not have notice) where possible rather than merely proof of an absence of evidence to support a finding of notice (i.e., an initial demonstration that the record lacks sufficient evidence from which a fact-finder might, at a minimum, reasonably infer notice) (compare, Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294 [1st Dept] [where slip-and-fall plaintiff presented evidence that floor in grocery's produce aisle was frequently littered with debris, defendant moving for summary judgment must establish the absence of notice as a matter of law], with Strowman v Great Atl. & Pac. Tea Co., 252 AD2d 384 [1st Dept] [Andrias, J., dissenting] [where record is bereft of evidence of notice, defendant moving for summary judgment in slip-and-fall case met its initial burden to make a prima facie showing and statement in Colt v Great Atl. & Pac. Tea Co., supra, at 295, that it was defendant's responsibility on motion to establish the absence of notice as a matter of law is incorrect insofar as defendant's initial burden, but properly characterized defendant's burden in Colt because plaintiff there successfully rebutted defendant's initial prima facie showing]; compare, Montuori v Town of Colonie, 716 NYS2d 437 [defendant moving for summary judgment in case where plaintiff hurt herself when she stepped in a hole in the rough while playing golf has not made a prima facie showing of lack of notice where defendant's maintenance employee testified about maintenance procedures for course inspections, the flagging and roping off of hazardous conditions, the type and frequency of mowing greens, aprons and fairways and the maintenance of sand traps, but was not a supervisor and lacked necessary personal knowledge because he did not work at the course where plaintiff's accident occurred during the relevant time period, did not maintain any records for defendant and had no personal knowledge of the hole plaintiff stepped in or of any record of this hole in the maintenance or other records kept by defendant prior to plaintiff's accident] with Richardson v Simone, 275 AD2d 576 [3d Dept] [defendant moving for summary judgment in slip-and-fall case has made a prima facie showing of lack of notice where there is nothing in the record to indicate that defendants knew or should have known of the defective condition]; see also, Van Steenburg v Great Atlantic & Pacific Tea Co., Inc., 235 AD2d 1001 [3d Dept] [defendant moving for summary judgment in slip-and-fall case has not made a prima facie showing of lack of notice requiring plaintiff 's rebuttal where store manager testified that there was no janitorial staff for store and instead all department heads and employees were instructed to clean during idle time; and store manager could not recall whether a specific sweeping or mopping schedule was in place or when the floor was last cleared prior to plaintiff's accident]).


A. Creation of a Dangerous or Defective Condition/Actual Notice

Defendant points principally to the deposition testimony of the shuttle bus driver, David Roy Braley ("Braley"), to establish the absence of a material issue of fact on the questions of whether defendant either created or had actual notice of a dangerous or defective condition (Furnish Aff., ¶ 6; Affidavit in Opposition and in Reply of Kimberly Boucher Furnish, Esq., sworn to December 20 and filed December 21, 2000, ¶ 6; Mem. of Law, at 1-2). Braley, who drove the shuttle bus once a week during the 1995-96 and 1996-97 ski seasons (DT-BR 6, 13),[3] described the stairs as like "any typical school bus step" made of metal and covered with a rubber traction pad (DT-BR 14). He testified that none of the stair steps were broken or cracked

(DT-BR 15); that the rubber covering them was in "good shape" (DT-BR 30). After claimant's accident, Braley examined the stairs before resuming transport of skiers from the ski mountain to the parking lots and found them to be "fine," meaning "weren't broken or anything like that" (DT-BR 30-31).

Braley also testified that "because you're in an outdoor situation, snow boots and skis and steps," he "would try to keep the school bus and the steps swept out" by sweeping them with a broom roughly four times a day and "if there was a lull" (DT-BR 17) and by shoveling any accumulated slush or compacted snow with a snow shovel (DT-BR 17-18); and would generally caution exiting skiers to "watch their step[ ]" (DT-BR 23). Braley observed passengers wearing ski boots who "momentarily lost footing" on the steps (DT-BR 16), but no slips and falls prior to claimant's accident (DT-BR 15-16, 22); nor in the two years that he drove the shuttle bus did anyone ever complain to him that these stairs were slippery (DT-BR 28).

Defendant also calls attention to claimant's characterization of the stairs as unremarkable (i.e., "[u]sual black with the rubber") when she climbed up them without difficulty upon entering the bus (DT-B 20-21); and to photographs of the stairs (Furnish Aff., Exh. M). Defendant characterizes these photographs as disclosing that the step on which claimant slipped (DT-B 23, 25-27) is intact, albeit somewhat worn.

In rebuttal, claimant argues that Braley's acts of sweeping, and occasionally shoveling, the stairs contributed to their worn and allegedly damaged state (Galluzzi Aff., ¶¶ 20-21); however, supposition is insufficient to raise a triable issue of fact regarding whether "by its affirmative acts, the defendant created the particular condition which caused the plaintiff to slip and fall" (Agbi v York Intl. Corp., 249 AD2d 430).[4] "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 562 supra).

As for actual notice, claimant also cites Braley's statement that he had on occasion seen skiers slip on the stairs when exiting the shuttle bus (Galluzzi Aff., ¶¶ 16, 20, 22). This testimony, read in context, however, makes plain that these incidents, at most, provided notice of the hazards of maintaining balance when walking down stairs while wearing unwieldy ski boots (DT-BR 16), not to any danger caused by the stairs, much less by the particular step on which claimant slipped before sliding to the ground.

B. Constructive Notice/Existence of a Dangerous or Defective Condition

To establish the absence of a material issue of fact on the question of constructive notice, defendant contends that the photographs of the stairs (Furnish Aff., Exh. M) do not disclose any "visible condition so as to impute constructive notice" (Mem. of Law, at 4). According to defendant, the photographs fall far short of depicting any condition fairly characterized as dangerous or defective (Mem. of Law, at 2; Furnish Aff., ¶ 12; Exh. M).

By way of rebuttal, claimant points to the photographs as evidence for the "dilapidated" and "very worn" conditions of the stairs (Galluzzi Aff., ¶¶ 5, 8, 11-12). Relying on Nadel v Fichten (34 App Div 188), claimant reasons that defendant is properly charged with constructive notice of this dilapidated and very worn (and hence, dangerous) condition because Braley, who regularly drove the shuttle bus during the 1995-96 and 1996-97 ski seasons, entered and exited the bus using these stairs; and routinely swept and shoveled them (Galluzzi Aff., ¶¶ 22, 28-29). Finally, claimant points to the testimony of Milly Morin ("Morin"), a friend who accompanied her on the weekend ski trip. Morin testified that as she comforted claimant while they awaited an ambulance, she looked back at the stairs and noticed that the step on which claimant had slipped was completely worn and angled rather than "clean" (i.e., it was not squared off) (DT-B 28, 30; DT-M 21-24).[5] In short, this step "was completely just destroyed" (DT-M 25).

First, the photographs (Furnish Aff., Exh. M)[6] belie the existence of anything other than worn stairs, and a step is not dangerous merely because it is worn from traffic. In any event, the in-between step--the particular step on which claimant testified that she slipped--does not even appear especially worn: the surface of its tread does not look abraded or uneven; this step is intact and exhibits no visible and apparent defect.

As defendant points out, several cases hold that where a stairway has been safely used for a number of years, it may continue in service "without the imputation of culpable imprudence and carelessness" despite its worn nature (Tyron v Chalmers, 205 App Div 816, 818, lv dismissed 240 NY 580 [central question was "Had such a [worn] condition grown gradually from use that defendants should have realized, before this accident, that customers using the stairway were exposed to any unreasonable or unnecessary danger because the nose or front edge of the platform or landing was worn" Tryon v Chalmers, supra, at 818]; see also, Holder v City of Yonkers, 281 App Div 975 [step which by reason of long usage had become worn and chipped for an inch and one-half back from the edge of the nosing did not constitute defect sufficient to charge a prudent person with reasonable anticipation of danger]; Charanis v R.H. Macy & Co., 257 App Div 980, lv conditionally dismissed 281 NY 819 [where only defect shown in photographs is that step on which plaintiff slipped had become somewhat worn by the passage of thousands of defendant's customers over time and there is no proof of any previous accident, no actionable negligence is established]). In fact, the long-term, heavy usage of stairs without incident, as was the case here, has been held to constitute "potent assurance" to a defendant that the stairs are reasonably safe (Tyron v Chalmers, supra, at 818).

Next, claimant argues that the alleged defect in Nadel v Fichten, 34 App Div 188, supra, is "similar" to the alleged defect in this case, and therefore defendant may likewise be charged with constructive notice (Galluzzi Aff., ¶¶ 28-29). In Nadel, plaintiff, a tenant in a house owned by defendant landlord, was injured when she fell down a common stairway. After trial, the court entered judgment in plaintiff's favor upon a jury verdict and defendant appealed.

Plaintiff had presented evidence at trial that her foot caught in an insecure rubber facing on the second step from the top of the stairway and, in an attempt to extricate her foot, she fell down the flight of stairs. According to the appellate court, at the close of proof the case boiled down to two questions: (1) whether the stairway was in a dangerous condition and that condition caused plaintiff's fall; and (2) if so, whether the unsafe and insecure condition of the rubber facing had existed for so long and under such circumstances as to constitute constructive notice to defendant.

As to the first question, the appellate court found the evidence conflicting, but sufficient to support the finding in plaintiff's favor. As to the second question, the evidence was also conflicting: plaintiff's brother-in-law had testified that the steps were in bad condition, with rubber torn in the middle and loose on the first and second steps from the top of the stairway, and that as a frequent visitor to the premises he had particularly noticed this condition the week before plaintiff's accident; however, both defendant, who visited the premises daily, and the janitress, who swept the stairs daily, testified otherwise. The appellate court concluded that
[a]lthough both [defendant landlord and the janitress] denied that the rubber on the stairs was in bad condition at the time the plaintiff said she was injured, the jury may have found that the defendant and the janitress, his agent in charge of the premises, were mistaken on this point, and, furthermore, that they visited the hallway and stairs so often that they ought to have known of any dangerous defect which had existed there a week"

(id., at 190).

Nadel and this claim differ in two crucial respects. First, the constructive notice in Nadel is predicated upon the jury's earlier finding that there existed a dangerous condition (torn and loose rubber on the top two steps) for defendant and the janitress to have observed during their daily travels up and down the stairs in the week prior to plaintiff's accident. Here, the photographs dispel any notion of a particular defect on the step on which claimant slipped. Even if "worn" is equated with "dangerous" as claimant urges, defendant was, at most, generally aware of a potentially dangerous condition, which is legally insufficient to create constructive notice (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837, supra).

Second, the plaintiff in Nadel testified that her foot caught in the insecure portion of the rubber facing on the second step, causing her to fall down the stairs; i.e., the particular defect that defendant ought to have noticed caused the accident. Here, there is no comparable testimony--or clarity--on the part of claimant, who merely states that the offending step "gave weight." Her attorney hypothesizes that because a part of the white edging[7] is missing at the verge of both the stair passage and the tread of the bottom step, "[i]t is a logical inference that the [edging] on the [in-between] step was so loose that it bent causing the plaintiff to fall" or "gave weight . . . on its way to falling off as the [edging] had on the edges of the top and bottom step" (Galluzzi Aff., ¶ 10). This amounts to speculation stacked upon speculation, not competent evidence of a dangerous condition (or proximate cause) or evidence that defendant must have known of this supposed dangerous condition (see, Roche v Hearst Corp., 53 NY2d 767, 769; Zuckerman v City of New York, 49 NY2d 557, 563, supra).

Finally, Morin's characterization of the step as "completely just destroyed" (DT-M 25) is insufficient to raise an issue of fact regarding notice. Credibility issues generally require a trial, but not in those circumstances where the issues raised are "not genuine, but feigned" (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441) or are "conclusory and self-serving" (Bushman v Di Carlo, 268 AD2d 920, 922, lv denied 94 NY2d 764), or if inaccuracy is "clearly apparent" (Krupp v Aetna Life & Casualty Co., 103 AD2d 252, 262), as is the case here.

In contrast to Morin's severe description, claimant characterized the stairs as unremarkable; i.e., the "[u]sual black with the rubber" (DT-B 20). When getting on the shuttle bus for the trip from the ski mountain to the parking lot, neither claimant nor Morin experienced any difficulty ascending these stairs or noticed any defect in the step on which claimant later slipped (DT-B 21; DT-M 17, 19). Tellingly, the photographs showing the step on which claimant slipped manifestly fail to support the extreme state Morin described. Although this step exhibits some wear from usage, there is no obvious defect that would have put defendant on notice of any potential hazard (see, e.g., Tyron v Chalmers, supra; Holder v City of Yonkers, supra; Charanis v R.H. Macy & Co., supra).

II. Conclusion

Defendant met its initial burden on the motion by adducing the deposition testimony of Braley, who had personal knowledge of the condition of the stairs and of the absence of prior complaints about or accidents on the stairs/step; the deposition testimony of claimant and Morin, who climbed up the shuttle bus's stairs before the accident without noticing any defect in the step on which claimant slipped a short time later (see, Pollio v Nelson Cleaning Co., 269 AD2d 512); and the photographs, which reveal the absence of any patent defect in this step.

At this juncture, claimant was required to "assemble, lay bare and reveal [her] proofs" in order to show a genuine issue of fact for resolution at trial (Du Pont v Town of Horseheads,163 AD2d 643, 645); and it is reasonable to presume that in opposing the motion, claimant "presented [her] best evidence in opposition" (Campagno v Ipco Corp., 138 Misc 2d 44, 46). Instead, claimant advanced conjecture, inapposite analogy and a description contradicted by the physical facts, which are insufficient to resist the motion for the reasons discussed in this opinion. Accordingly, the Court grants defendant's motion for summary judgment and dismisses the claim. In light of this determination, the Court denies claimant's cross-motion for permission to amend her bill of particulars pursuant to CPLR 3025 (b) as moot.

March 26, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]"DT-B" followed by a number or numbers refers to the corresponding page(s) in the transcript of claimant's deposition conducted on November 8, 1999 (see, Exhibit F annexed to the Affidavit of Kimberly Boucher Furnish, Esq., sworn to and filed October 16, 2000; and Exhibit A annexed to the Affirmation in Opposition and in Support of Cross-Motion of Michael J. Galluzzi, Esq., dated November 17 and filed November 22, 2000). To the extent claimant's account of events may differ from other evidence in the record, the Court accepts claimant's account for purposes of these motions.
[2]Claimant generally referred to this in-between step as the "second step" and to the top of the stair passage as the "platform" (DT-B 20, 23, 25-27).
[3]"DT-BR" followed by a number or numbers refers to the corresponding page(s) in the transcript of David Roy Braley's deposition conducted on November 23, 1999 (Furnish Aff., Exh. G; Galluzzi Aff., Exh. D).
[4]As discussed later, the "particular condition" causing claimant to slip and fall is altogether uncertain in any event.
[5]"DT-M" followed by a number or numbers refers to the corresponding page(s) in the transcript of Millie Morin's deposition conducted on July 24, 2000 (Furnish Aff., Exh. K; Galluzzi Aff., Exh. B).
[6]The discovery deadline in this claim was extended until August 15, 2000, in part to permit claimant to inspect the shuttle bus (Furnish Aff., ¶ 9, Exh. J). Claimant's attorney apparently ultimately decided to forego the opportunity to do so, and filed a Note of Issue and Certificate of Readiness on August 8, 2000 (id., ¶ 11, Exh. L). On October 10, 2000, defendant served claimant with the photographs in response to an outstanding Notice to Produce (id., ¶ 12, Exh. M). Claimant's accident occurred on January 18, 1997 and Braley testified that the shuttle bus remained in regular use for the rest of that ski season and in use on a back-up basis for at least the following season (DT-BR 39-41). Claimant treats the photographs as depicting the condition of the stairs at the time of her accident, although there is no indication whether these photographs were actually taken reasonably soon thereafter (cf., Taylor v New York City Tr. Auth., 48 NY2d 903; Batton v Elghanayan, 43 NY2d 898; Kniffin v Thruway Food Markets, Inc., 177 AD2d 920) or sometime later, after further wear and tear.
[7]Claimant refers to the edging on the stairs as "nosing," but this term normally connotes a rounded edge of a stair tread, which projects over the riser. The white edging fits over and delineates the outer margin of the stair passage and both stair treads.