At the 50-h hearing regarding the fall on a stairwell, plaintiff offered no evidence of any defect, let alone notice of any defect. He contradicted this testimony with the errata sheet, in which he changed the theory from his foot "catching," presumably on some uneven surface, to his foot "slipping" on a "worn" surface. Plaintiff offered no explanation for the changes in the errata sheet, and so they are not cognizable and he is bound by his original hearing testimony, pursuant to CPLR 3116[a]. Plaintiff attempts to cure this defect by raising the same theory of slipping on a worn surface in his opposition affidavit. However, this raises only feigned issues of fact, however. Plaintiff attempts to generate issues of fact by pointing to the testimony of one of defendant's witnesses to the effect that, after the fall, the New York City Department of Buildings issued a violation and the New York City Department of Citywide Administrative Services replaced all of the steps in the subject building and improved the steps' tread and nosing. However, evidence of post-accident repairs is inadmissible and cannot be used as prior notice of a defect. The fact that the evidence of subsequent repairs might be admissible to show that defendant knew the location of the accident does not render the evidence admissible as proof of fault, nor cure the lack of any triable issue of fact on that account.
Lopez v. City of New York, NY Slip Op 02465 (1st Dep't April 22, 2021)
