Preview
FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________________________Ç
NAJAH STEVENS,
Plaintiff, Index No.: 521039/2017
AFFIRMATION IN SUPPORT
OF MOTION IN LIMINE
-against-
IRT PARTNERSHIP AND SDHR MANAGEMENT, LCC,
Defendant.
_________________________________________Ç
CYNTHIA KOURIL, ESQ., an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following to be true, subject to the penalties of perjury:
1. I am of counsel to The Gold Law Firm, PC, counsel for the defendants IRT
PARTNERSHIP AND SDHR MANAGEMENT, LCC, and as such am fully familiar with the facts
and circumstances herein. I submit this Affinmation based upon my own personal knowledge of
the file maintained by my office.
2. In anticipation of the trial in this personal injury action, I submit this Affirmation
(along with accompanying Memorandum of Law and Affidavit of Engineering Expert Rudi O.
Sherbansky ("Expert Aff.")) in support of the present Motion in Limine seeking an Order
precluding the admission into evidence of any expert report or affidavit of Plaintiff's engineer
Scott Silberman, P.E., and any testimony by that expert, based upon Mr. Silberman's failure to
demonstrate that the conditions, especially as to the carpet tear and lighting, were substantially the
same on the day of his inspections as they were on the day of the alleged accident 5 1/4 years
earlier, and to provide any testing results or even that he did the test on the lighting levels at the
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premises. At the very least, this Court should preclude Plaintiff from admitting into evidence any
report, testimony or other evidence referring to the following statutes, ordinances, rules,
regulations, and other guidelines and provisions cited by Plaintiff and Mr. Silberman, as they are
inapplicable, and such references would be seriously prejudicial to the Defendants, especially as
they would be imposing a higher standard of care than is pennitted under the relevant law: With
respect to Mr. Silberman's opinion concerning the human gait, biomechanics and the impact of
activities on the human anatomy, this Court should exclude such an opinion as being beyond his
expertise.
FACTUALBACKGROUND
Parties Pleadings
3. In her Complaint in this case (Exhibit "A"), Plaintiff alleged that on or about July
16, 2017, while she "was lawfully descending the aforesaid staircase, she was caused to be
violently precipitated to the floor when caused to slip, trip and/or fall due to the aforesaid
improperly maintained, dangerous and/or otherwise hazardous conditions exiting in and/or upon
staircase."
the aforesaid premises Ex. A at $12. She alleges that there was "a defective, torn, worn
out, raised, improperly maintained, depressed, dangerous and/or otherwise hazardous carpeted
stair condition". Ex. A at 19. Plaintiff claims the Defendant IRT Partnership owned the premises
at 227 Thomas S Boyland Street, Brooklyn, and SDHR Management managed the premises, and
that they were negligent. Ex. A at $3-4, 12.
4. In their Amended Answer, Defendants admitted that IRT Partnership owned the
premises, denied the remaining allegations, and asserted various defenses. Exhibit "B".
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5. In her Bill of Particulars (Exhibit "C"), Plaintiff alleges that Defendants were
negligent in, among other ways, "permitting, allowing, causing and/or creating dangerous
staircase, hazardous torn carpeting, defective hand railing and/or poor lighting conditions to exist
stairway."
upon the aforesaid interior Ex. C at ¶7. Plaintiff fails to cite therein to any specific
statutes, ordinances, etc. it was relying upon or claiming were violated by Defendants. Ex. C at
$8.
Parties'
Testimony
6. During her deposition (Exhibit "D"), Plaintiff testified that she lived in apartment
2 at the Premises, and that she had lived there since April 1, 2007. Ex. D at 5:17-19, 8:5-9.
7. As for the accident in question, Plaintiff testified that it occurred at 4:30 AM when
she came back home from a party. Ex. D at 12:8-23, 13:18-21.She was going up the stairs and her
nephew was behind her. There was a stairwell to go from the ground floor to her second floor
apartment, which had about 15 steps. Ex. D at Ex. D at 14:2-13, 15:4-13. Plaintiff testified to
using the stairs many times. Ex. D at 51:17-19. She testified:
I was walking up the stairs. I was holding onto the railing. When I got to the last top of
the stairs, the light was kind of dim, I went to make a turn, there's no railing, so I was
looking to see to grab, my let foot got caught in the carpet.
Ex. D at 16:14-19. She was looking straight ahead when she got her foot caught. Ex. D at 18:6-
25. She said she was almost to the top when her foot got caught. There were about 4 steps to go
carpet."
before the top. Ex. D at 19:6-15. What caused her to trip was "[a] torn She testified that
"It's like a hole". Ex. D at 20:4-10.
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8. When she was shown a photo, she pointed to the fourth step down where the riser
goes straight across the area of the step, and the next step would be at an angle. Ex. D at 21:24 to
22:12. She further testified as follows:
I tried to reach and grab but there's no more railing. The railing stop. So the last four stairs
going up there's no railing. So I was trying to grab I fell backwards. I was trying to grab
the railing. I fell backwards and I fell on my nephew and he fell on top of me.
Ex. D at 22:19 to 23:3.
9. She testified that there were two separate lightbulbs, one at the landing on the first
floor and another at the landing on the second floor. She testified that the bulb on the landing on
the second floor had been out that night. Ex. D at 50:19 to 51:9. She was still able to see a shadow
of the carpet tear with the bulb out. Ex. D at 51:10-16.
10. During the deposition of Plaintiff's nephew J.S. (Exhibit "E"), he testified that the
Premises had three apartments, one on each floor. He would visit the Plaintiff about once a week
for most of his life. Ex. E at 17:20 to 18:17. He was 10 going on 11 at the time of the accident.
Ex. E at 19:5-11. He testified that he was present at the time of Plaintiff's accident. Ex. E at 23:18
to 24:4. He testified that they were coming in late from a family gathering at his grandmother's
house and they were going up the stairs to the Plaintiff's apartment when Plaintiff fell on top of
him. Ex. E at 24:5to 25:6, 47:7-12. He recalled that they were near the top of the stairs when she
fell. Ex. E at 56:22 to 57:8. They had been at the family gathering for a few hours prior to the
accident. Ex. E at 29:24 to 30:2.
11. He recalls the steps being inside the building and they were between the first and
second floor. Ex. E at 36:36:6-8, 42:12-14. When they entered onto the first floor, he was able to
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able to see the stairs. There was a lightbulb working on the first floor at the time, but not on the
second floor. Ex. E at 38:16-25, 45:17-21. He never fell on the subject stairs. Ex. E at 45:14-16.
12. During the deposition of David Tauber (Exhibit "F"), one of the principals of
SDHR Management, LLC, along with other family members. Ex. F at 7:17-22, 9:17-22. He
testified to there being three apartments in the Premises. Ex. F at 12:14-19.
Expert Disclosures and Reports
13. In her Expert Witness Disclosure (Exhibit "G"), Plaintiffs designated Scott
Silberman, P.E. as her expert and provided a copy of his resume with the Disclosure. In that
Disclosure, colmsel states:
The subject matter about which Mr. Silberman will testify concerns the condition of the
stairs at the subject premises based upon the pictures, and documents exchanged during the
course of discovery, the testimony of the parties and his own in-person inspection of the
subject stairway. He will testify about general principles of engineering and stairway safety
and how they apply to the subject staircase. He will testify about general stairway safety
and safe practices in the construction, installation and maintenance of stairway and the
premises referenced in the complaint. He will further testify about the customs and
practices in the industry, applicable NYS and NYC building codes. He is expected to testify
concerning the applicability of various safety statutes, standards, codes, rules and regulations
defendants'
to the facts of this case and how violation of those safety statutes, standards, codes,
rules and regulations, as well as the failure to follow good and accepted safety practices were
the cause of plaintiff s accident and resulting injuries.
Counsel further states in the Disclosure as follows:
Mr. Silberman is expected to testify regarding his findings from his personal inspection of the
subject staircase taken on November 7, 2022. Specifically, he is expected to testify that the
long-standing rip in the carpet created a dangerous condition and tripping hazard; that the
lighting conditions were not sufficient and created a dangerous condition and tripping hazard;
that the handrail stopped prior to the step where she fell and therefore there was no graspable
handrail at the location of the fall and such was negligence; that the riser heights were not
uniform and therefore created a tripping hazard; that the tread widths were also not uniform
and not sufficient width to hold a foot which is a dangerous and defective condition; that the
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lighting conditions were insufficient and compounded the dangerous conditions at the subject
staircase.
Ex. G at 1-2. Counsel states therein that the Premises were originally constructed in 1899 and
the building was erected as an Old Law Tenement. Ex. G at 12.
14. Counsel anticipates that Silberman will testify to the following code and other
Defendants'
provisions, and guidelines as purported evidence of the alleged negligence: 1867
Code chap. 908 §4; 1909 Housing Tenement Law §21, 35; 1916 NYC Building Code §153(4),(6),
159(2); 1938 NYC Building Code §26-280.0, 26-292.0(d), 26-292.0(1)(1), (1)(2); 1968 NYC
Building Code §27-375(e), (f), 27-381; 2008 NYC Building Code §1006.1, 1006.2, 1009.3,
1009.11, 1009.11.6; 2014 NYC Building Code §1006.1, 1006.2, 1009.4.2, 1009.11, 1012.7; 2014
NYC Fire Code §1027.1, 1027.2, 1027.3; NYS Multiple Dwelling Law §37, 52(1)-(3), 78, 210;
Housing Maintenance Code §27-2005, 27-2038; and Administrative Code §28-301.1. Silberman
also cites to the Standard Practice for Safe Walking Surfaces (F1637) published by the American
Society of Testing Materials; a 1985 Federal Transit Administration study entitled "Pedestrian
Falling Accidents in Transit Terminals"; and certain International Building Code Commentaries.
Ex. G.
Defendants'
Expert Report
15. Defendants retained engineering expert Rudi O. Sherbansky, who prepared a report
dated October 26, 2023, attached as Ex. A to the Expert Aff. In that report. Sherbansky states:
Overall, the subject wood framed stairway with the winding stair treads is part of the original
construction of the building that was built in about 1800s and at the time of my site visit, the
structural design and construction of the place of occurrence was found to be in conditions that
are consistent with the standards of construction, design and style of such staircases built in the
1800s in a 3-family old law tenements of this size, type and age, subject to wear and tear.
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Expert Aff. Ex. A at 12. He describes the subject staircase as follows:
29.75"
The inches wide, wood framed staircase from the second to ground floor has 15 steps
with beige colored carpet surface on the treads and risers including 2 winding steps at the top
of the staircase. The winding steps have varying tread depths by design in order to
accommodate the change in direction of the staircase by 90 degrees. The top and bottom stair
landings and hallways floors are composed of laminated or linoleum surface with a light wood
color and pattern of wood plank floors. The height of the wood guard railing above the 2nd floor
32.5"
landing is approximately inches (plus/minus ½ of an inch). The guard railing on the
3.25"
second floor hallway terminate at a newel post which is by 3.25 square wood post that
33.5"
extends approximately inches above finished floor (plus minus ¼ "of an inch).
Expert Aff. Ex. A at 6-7.
16. Sherbansky discussed the handrail as follows:
19. The wood handrail on the left side of the staircase going up has a height of
36"
approximately inches above stair nosing (plus minus 0.5"of an inch). The original design
of the staircase railing is such that the handrail terminates at the 2nd floor level, which is the 5th
step from the top landing and connects with a horizontal wood framing member that is attached
to the top newel Post of the staircase. The design of the subject railing system is such that when
a person reaches the fifth step from the top, they are able to reach or grab the top Newell post
which is about 12"inches away from the fourth step in several positions, as well as able to
reach/grab and hold the wood balustrades of the railing above in several ways, enabling the
user to support themselves in ascending the last two winding steps of the staircase. This
handrail termination design in a winding staircase and its connection to newel posts at the
center of the winding or spiraling top steps was a typical handrail design during the 19th century
(1800s) at the time that the subject premises was built.
20. The plaintiff stated that just before the incident she was holding on to the railing
until she got to the top of the stairs and there was no railing. The wood handrail was found to
be well-secured to its point of termination at the framing of the second-floor framing and frame
connection to the top newel post and
is consistent withbalustrades
the architectural stylethat
3.25" inches-by-3.25"
and design used in the 1800s (see attached photos). The inches square
8"
wooden newel posts at the top of the staircase terminates approximately inches away from
the nosing of the 4th step from the top and approximately 3 inches in front of the nosing of the
¼"
3rd step from the top (plus minus of an inch).
***
28. The stairway structure was equipped with
a well-secured handrail on the left
3"
side that terminates by design with a newel post approximately inches in front of the
8"
nosing of the 3rd step and inches behind the nosing of the 4th Step from the top, consistent
with the standards of construction, design and style of such staircases built in the 1800s in a
3-family residential building of this size, type and age. The design of this staircase is such
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that its winding stairs spiral around the top newel post which is at the center of the radius of
the winding stairs and therefore allow a person using the stairs to grab the newel post or
adjacent guardrail and balustrades for hand support in going up while turning the last set of
winding stairs. The straight handrail in the lower portion of the staircase was designed for
hand support while going up the straight set of steps in the staircase while the top newel post,
balustrades and guardrail of the 2nd floor hallway was designed to provide hand support in
going up while turning the last set of winding stairs.
Expert Aff. Ex. A at 8-9. 12-13.
17. Sherbanksy discusses in detail why the various provisions and guidelines cited by
Plaintiff and her expert are not applicable. Expert Aff. ex. A at 13-35.
. . .
CONCLUSION
18. Based upon the foregoing, the Defendant respectfully request that this Court issue
an Order (a) precluding the admission into evidence of the expert report/affidavit of Plaintiff's
engineer Scott Silberman, and any testimony by that expert; and (c) such other and further relief
this Court deems just and proper.
Dated: Bellmore, New York
October 27, 2023
C HIA KOURIL, ESQ/
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Preview
FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS __________________________________________Ç NAJAH STEVENS, Plaintiff, Index No.: 521039/2017 AFFIRMATION IN SUPPORT OF MOTION IN LIMINE -against- IRT PARTNERSHIP AND SDHR MANAGEMENT, LCC, Defendant. _________________________________________Ç CYNTHIA KOURIL, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true, subject to the penalties of perjury: 1. I am of counsel to The Gold Law Firm, PC, counsel for the defendants IRT PARTNERSHIP AND SDHR MANAGEMENT, LCC, and as such am fully familiar with the facts and circumstances herein. I submit this Affinmation based upon my own personal knowledge of the file maintained by my office. 2. In anticipation of the trial in this personal injury action, I submit this Affirmation (along with accompanying Memorandum of Law and Affidavit of Engineering Expert Rudi O. Sherbansky ("Expert Aff.")) in support of the present Motion in Limine seeking an Order precluding the admission into evidence of any expert report or affidavit of Plaintiff's engineer Scott Silberman, P.E., and any testimony by that expert, based upon Mr. Silberman's failure to demonstrate that the conditions, especially as to the carpet tear and lighting, were substantially the same on the day of his inspections as they were on the day of the alleged accident 5 1/4 years earlier, and to provide any testing results or even that he did the test on the lighting levels at the 1 1 of 8 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023 premises. At the very least, this Court should preclude Plaintiff from admitting into evidence any report, testimony or other evidence referring to the following statutes, ordinances, rules, regulations, and other guidelines and provisions cited by Plaintiff and Mr. Silberman, as they are inapplicable, and such references would be seriously prejudicial to the Defendants, especially as they would be imposing a higher standard of care than is pennitted under the relevant law: With respect to Mr. Silberman's opinion concerning the human gait, biomechanics and the impact of activities on the human anatomy, this Court should exclude such an opinion as being beyond his expertise. FACTUALBACKGROUND Parties Pleadings 3. In her Complaint in this case (Exhibit "A"), Plaintiff alleged that on or about July 16, 2017, while she "was lawfully descending the aforesaid staircase, she was caused to be violently precipitated to the floor when caused to slip, trip and/or fall due to the aforesaid improperly maintained, dangerous and/or otherwise hazardous conditions exiting in and/or upon staircase." the aforesaid premises Ex. A at $12. She alleges that there was "a defective, torn, worn out, raised, improperly maintained, depressed, dangerous and/or otherwise hazardous carpeted stair condition". Ex. A at 19. Plaintiff claims the Defendant IRT Partnership owned the premises at 227 Thomas S Boyland Street, Brooklyn, and SDHR Management managed the premises, and that they were negligent. Ex. A at $3-4, 12. 4. In their Amended Answer, Defendants admitted that IRT Partnership owned the premises, denied the remaining allegations, and asserted various defenses. Exhibit "B". 2 2 of 8 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023 5. In her Bill of Particulars (Exhibit "C"), Plaintiff alleges that Defendants were negligent in, among other ways, "permitting, allowing, causing and/or creating dangerous staircase, hazardous torn carpeting, defective hand railing and/or poor lighting conditions to exist stairway." upon the aforesaid interior Ex. C at ¶7. Plaintiff fails to cite therein to any specific statutes, ordinances, etc. it was relying upon or claiming were violated by Defendants. Ex. C at $8. Parties' Testimony 6. During her deposition (Exhibit "D"), Plaintiff testified that she lived in apartment 2 at the Premises, and that she had lived there since April 1, 2007. Ex. D at 5:17-19, 8:5-9. 7. As for the accident in question, Plaintiff testified that it occurred at 4:30 AM when she came back home from a party. Ex. D at 12:8-23, 13:18-21.She was going up the stairs and her nephew was behind her. There was a stairwell to go from the ground floor to her second floor apartment, which had about 15 steps. Ex. D at Ex. D at 14:2-13, 15:4-13. Plaintiff testified to using the stairs many times. Ex. D at 51:17-19. She testified: I was walking up the stairs. I was holding onto the railing. When I got to the last top of the stairs, the light was kind of dim, I went to make a turn, there's no railing, so I was looking to see to grab, my let foot got caught in the carpet. Ex. D at 16:14-19. She was looking straight ahead when she got her foot caught. Ex. D at 18:6- 25. She said she was almost to the top when her foot got caught. There were about 4 steps to go carpet." before the top. Ex. D at 19:6-15. What caused her to trip was "[a] torn She testified that "It's like a hole". Ex. D at 20:4-10. 3 3 of 8 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023 8. When she was shown a photo, she pointed to the fourth step down where the riser goes straight across the area of the step, and the next step would be at an angle. Ex. D at 21:24 to 22:12. She further testified as follows: I tried to reach and grab but there's no more railing. The railing stop. So the last four stairs going up there's no railing. So I was trying to grab I fell backwards. I was trying to grab the railing. I fell backwards and I fell on my nephew and he fell on top of me. Ex. D at 22:19 to 23:3. 9. She testified that there were two separate lightbulbs, one at the landing on the first floor and another at the landing on the second floor. She testified that the bulb on the landing on the second floor had been out that night. Ex. D at 50:19 to 51:9. She was still able to see a shadow of the carpet tear with the bulb out. Ex. D at 51:10-16. 10. During the deposition of Plaintiff's nephew J.S. (Exhibit "E"), he testified that the Premises had three apartments, one on each floor. He would visit the Plaintiff about once a week for most of his life. Ex. E at 17:20 to 18:17. He was 10 going on 11 at the time of the accident. Ex. E at 19:5-11. He testified that he was present at the time of Plaintiff's accident. Ex. E at 23:18 to 24:4. He testified that they were coming in late from a family gathering at his grandmother's house and they were going up the stairs to the Plaintiff's apartment when Plaintiff fell on top of him. Ex. E at 24:5to 25:6, 47:7-12. He recalled that they were near the top of the stairs when she fell. Ex. E at 56:22 to 57:8. They had been at the family gathering for a few hours prior to the accident. Ex. E at 29:24 to 30:2. 11. He recalls the steps being inside the building and they were between the first and second floor. Ex. E at 36:36:6-8, 42:12-14. When they entered onto the first floor, he was able to 4 4 of 8 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023 able to see the stairs. There was a lightbulb working on the first floor at the time, but not on the second floor. Ex. E at 38:16-25, 45:17-21. He never fell on the subject stairs. Ex. E at 45:14-16. 12. During the deposition of David Tauber (Exhibit "F"), one of the principals of SDHR Management, LLC, along with other family members. Ex. F at 7:17-22, 9:17-22. He testified to there being three apartments in the Premises. Ex. F at 12:14-19. Expert Disclosures and Reports 13. In her Expert Witness Disclosure (Exhibit "G"), Plaintiffs designated Scott Silberman, P.E. as her expert and provided a copy of his resume with the Disclosure. In that Disclosure, colmsel states: The subject matter about which Mr. Silberman will testify concerns the condition of the stairs at the subject premises based upon the pictures, and documents exchanged during the course of discovery, the testimony of the parties and his own in-person inspection of the subject stairway. He will testify about general principles of engineering and stairway safety and how they apply to the subject staircase. He will testify about general stairway safety and safe practices in the construction, installation and maintenance of stairway and the premises referenced in the complaint. He will further testify about the customs and practices in the industry, applicable NYS and NYC building codes. He is expected to testify concerning the applicability of various safety statutes, standards, codes, rules and regulations defendants' to the facts of this case and how violation of those safety statutes, standards, codes, rules and regulations, as well as the failure to follow good and accepted safety practices were the cause of plaintiff s accident and resulting injuries. Counsel further states in the Disclosure as follows: Mr. Silberman is expected to testify regarding his findings from his personal inspection of the subject staircase taken on November 7, 2022. Specifically, he is expected to testify that the long-standing rip in the carpet created a dangerous condition and tripping hazard; that the lighting conditions were not sufficient and created a dangerous condition and tripping hazard; that the handrail stopped prior to the step where she fell and therefore there was no graspable handrail at the location of the fall and such was negligence; that the riser heights were not uniform and therefore created a tripping hazard; that the tread widths were also not uniform and not sufficient width to hold a foot which is a dangerous and defective condition; that the 5 5 of 8 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023 lighting conditions were insufficient and compounded the dangerous conditions at the subject staircase. Ex. G at 1-2. Counsel states therein that the Premises were originally constructed in 1899 and the building was erected as an Old Law Tenement. Ex. G at 12. 14. Counsel anticipates that Silberman will testify to the following code and other Defendants' provisions, and guidelines as purported evidence of the alleged negligence: 1867 Code chap. 908 §4; 1909 Housing Tenement Law §21, 35; 1916 NYC Building Code §153(4),(6), 159(2); 1938 NYC Building Code §26-280.0, 26-292.0(d), 26-292.0(1)(1), (1)(2); 1968 NYC Building Code §27-375(e), (f), 27-381; 2008 NYC Building Code §1006.1, 1006.2, 1009.3, 1009.11, 1009.11.6; 2014 NYC Building Code §1006.1, 1006.2, 1009.4.2, 1009.11, 1012.7; 2014 NYC Fire Code §1027.1, 1027.2, 1027.3; NYS Multiple Dwelling Law §37, 52(1)-(3), 78, 210; Housing Maintenance Code §27-2005, 27-2038; and Administrative Code §28-301.1. Silberman also cites to the Standard Practice for Safe Walking Surfaces (F1637) published by the American Society of Testing Materials; a 1985 Federal Transit Administration study entitled "Pedestrian Falling Accidents in Transit Terminals"; and certain International Building Code Commentaries. Ex. G. Defendants' Expert Report 15. Defendants retained engineering expert Rudi O. Sherbansky, who prepared a report dated October 26, 2023, attached as Ex. A to the Expert Aff. In that report. Sherbansky states: Overall, the subject wood framed stairway with the winding stair treads is part of the original construction of the building that was built in about 1800s and at the time of my site visit, the structural design and construction of the place of occurrence was found to be in conditions that are consistent with the standards of construction, design and style of such staircases built in the 1800s in a 3-family old law tenements of this size, type and age, subject to wear and tear. 6 6 of 8 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023 Expert Aff. Ex. A at 12. He describes the subject staircase as follows: 29.75" The inches wide, wood framed staircase from the second to ground floor has 15 steps with beige colored carpet surface on the treads and risers including 2 winding steps at the top of the staircase. The winding steps have varying tread depths by design in order to accommodate the change in direction of the staircase by 90 degrees. The top and bottom stair landings and hallways floors are composed of laminated or linoleum surface with a light wood color and pattern of wood plank floors. The height of the wood guard railing above the 2nd floor 32.5" landing is approximately inches (plus/minus ½ of an inch). The guard railing on the 3.25" second floor hallway terminate at a newel post which is by 3.25 square wood post that 33.5" extends approximately inches above finished floor (plus minus ¼ "of an inch). Expert Aff. Ex. A at 6-7. 16. Sherbansky discussed the handrail as follows: 19. The wood handrail on the left side of the staircase going up has a height of 36" approximately inches above stair nosing (plus minus 0.5"of an inch). The original design of the staircase railing is such that the handrail terminates at the 2nd floor level, which is the 5th step from the top landing and connects with a horizontal wood framing member that is attached to the top newel Post of the staircase. The design of the subject railing system is such that when a person reaches the fifth step from the top, they are able to reach or grab the top Newell post which is about 12"inches away from the fourth step in several positions, as well as able to reach/grab and hold the wood balustrades of the railing above in several ways, enabling the user to support themselves in ascending the last two winding steps of the staircase. This handrail termination design in a winding staircase and its connection to newel posts at the center of the winding or spiraling top steps was a typical handrail design during the 19th century (1800s) at the time that the subject premises was built. 20. The plaintiff stated that just before the incident she was holding on to the railing until she got to the top of the stairs and there was no railing. The wood handrail was found to be well-secured to its point of termination at the framing of the second-floor framing and frame connection to the top newel post and is consistent withbalustrades the architectural stylethat 3.25" inches-by-3.25" and design used in the 1800s (see attached photos). The inches square 8" wooden newel posts at the top of the staircase terminates approximately inches away from the nosing of the 4th step from the top and approximately 3 inches in front of the nosing of the ¼" 3rd step from the top (plus minus of an inch). *** 28. The stairway structure was equipped with a well-secured handrail on the left 3" side that terminates by design with a newel post approximately inches in front of the 8" nosing of the 3rd step and inches behind the nosing of the 4th Step from the top, consistent with the standards of construction, design and style of such staircases built in the 1800s in a 3-family residential building of this size, type and age. The design of this staircase is such 7 7 of 8 FILED: KINGS COUNTY CLERK 10/30/2023 03:11 PM INDEX NO. 521039/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 10/30/2023 that its winding stairs spiral around the top newel post which is at the center of the radius of the winding stairs and therefore allow a person using the stairs to grab the newel post or adjacent guardrail and balustrades for hand support in going up while turning the last set of winding stairs. The straight handrail in the lower portion of the staircase was designed for hand support while going up the straight set of steps in the staircase while the top newel post, balustrades and guardrail of the 2nd floor hallway was designed to provide hand support in going up while turning the last set of winding stairs. Expert Aff. Ex. A at 8-9. 12-13. 17. Sherbanksy discusses in detail why the various provisions and guidelines cited by Plaintiff and her expert are not applicable. Expert Aff. ex. A at 13-35. . . . CONCLUSION 18. Based upon the foregoing, the Defendant respectfully request that this Court issue an Order (a) precluding the admission into evidence of the expert report/affidavit of Plaintiff's engineer Scott Silberman, and any testimony by that expert; and (c) such other and further relief this Court deems just and proper. Dated: Bellmore, New York October 27, 2023 C HIA KOURIL, ESQ/ 8 8 of 8