Plaintiff allegedly fell down the stairs on his way to a doctor's office. The plaintiff alleged the stairs were defectively designed. Defense established that the stairs were not defective and that the plaintiff, by his own testimony, did not know what caused him to fall. In opposition, the plaintiff made substantive changes to his deposition, materially changing his testimony, that the Court concluded were unsupported by an adequate explanation for the corrections (Torres v. Bd. of Educ. of City of New York, 137 A.D.3d 1256). The Court also found that the substantive changes presented a "feigned factual issue," designed to avoid the consequences of an earlier admission (McGuire v. Quinnonez, 280 A.D. 2d 587), which were insufficient to defeat summary judgment. The plaintiff also offered an expert affidavit in which the expert engineer speculated as to the cause of the plaintiff's fall. Stanley Fein attested that the alleged “improper staircase geometry violated good and accepted standards of engineering practice.”
​
The Court, by J. Sweeney, (citing  Buchholz v. Trump, 767 Fifth Ave., 5 N.Y.3d 1 (2005)) concluded that the expert opinion was conclusory and speculative and also insufficient to defeat summary judgment.  

Christopher Keane (as lead counsel) and Fern Flomenhaft won a defense verdict in this traumatic brain injury case following a 3 week trial in Supreme Court, New York County. The plaintiff, a 70 year old woman, sustained a severe traumatic brain injury in an unwitnessed fall at our client’s building on the Lower East Side of Manhattan. Although the plaintiff testified that she fell on front entrance stairs which were allegedly defective, she was found by witnesses on an upper landing.

Plaintiff was represented by Alan Shapey, Esq. of Lipsig, Shapey, Manus & Moverman. Plaintiff’s counsel asked the jury to award $5,000,000 in future medical care expenses, $5,000,000 for past pain and suffering, and $15,000,000 for future pain and suffering. After a day of deliberations, the jury returned a verdict in favor of defendant. The jury concluded that the building negligently maintained the stairs but that the plaintiff did not establish a causal connection to plaintiff’s injuries. Therefore the jury did not consider plaintiff’s injuries and awarded $0 in damages.  
 




​