Edward Fluksik, Appellant, v. Delmar Owners, Inc., Respondent

Edward Fluksik, Appellant, v Delmar Owners, Inc., Respondent. [670 NYS2d 321] [MAJORITY] —In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Price, J.), dated January 2, 1997, which, upon the granting of the defendant’s motion to dismiss the complaint for failure to establish a prima facie case made at the close of the plaintiffs evidence, is in favor of the defendant dismissing the complaint. Ordered that the judgment is affirmed, with costs. The plaintiff fell in the stairway of the defendant’s building after he missed a step which he claimed he was unable to see because of the design of the stairs and allegedly poor lighting. At the commencement of trial, counsel for both the plaintiff and the defendant consented to place certain photographs in evidence which the plaintiffs counsel stipulated were fair and accurate representations of the staircase at the time of the accident. The photographs constituted sufficient evidence to support the trial court’s finding that, as a matter of law, the plaintiff had failed to establish a prima facie case of negligence (see, Stillman v Frankel, 44 AD2d 821, affd 36 NY2d 899). The plaintiffs remaining contentions are without merit. Thompson, J. P., Joy, Florio and Luciano, JJ., concur.