| Reid v Schalmont School Dist. |
| 2008 NY Slip Op 03342 [50 AD3d 1323] |
| April 17, 2008 |
| Appellate Division, Third Department |
| Luther Reid, Appellant, v Schalmont School District,Respondent. |
—[*1] The Mills Law Firm, L.L.P., Clifton Park (Christopher K. Mills of counsel), forrespondent.
Cardona, P.J. Appeal from an order of the Supreme Court (Catena, J.), entered March 8,2006 in Schenectady County, which granted defendant's motion for summary judgmentdismissing the complaint.
Plaintiff commenced this personal injury action seeking to recover for injuries he allegedlysustained on January 26, 2001 when he slipped and fell on stairs located inside defendant'sMariaville Elementary School in Schenectady County. Immediately prior to the accident,plaintiff, an employee of Tri-County Bottle and Gas, delivered propane to the school's outdoortank where he noticed there was "a lot of snow." Plaintiff then walked inside the school to havethe invoice signed. At that point, he asked the school custodian, Joseph Hanson, for directions tothe restroom. Hanson directed plaintiff to cross the gymnasium, go up a small set of woodenstairs and proceed down a hallway to the lavatory. On his return, plaintiff retraced his steps, butslipped and fell while descending those same stairs. Hanson, who heard the sound of plaintifffalling and hurried over to offer assistance, noticed that plaintiff had snow on his boots and waswearing "very dark sunglasses." He also saw some water and slush on the floor at the bottom ofthe stairs, as well as water and melting snow, resembling footsteps, leading from the stairs to therestroom.
Thereafter, plaintiff alleged, among other things, in his complaint and verified bill of [*2]particulars, that he fell as a result of the negligent design,construction and maintenance of the stairs. Following discovery, defendant moved for summaryjudgment dismissing the complaint. Supreme Court granted that motion, prompting thisappeal.[FN*]
For defendant to prevail on its summary judgment motion, it must "establish as a matter oflaw that [it] maintained the property in question in a reasonably safe condition and that [it]neither created the allegedly dangerous condition existing thereon nor had actual or constructivenotice thereof" (Mokszki v Pratt, 13AD3d 709, 710 [2004] [internal quotation marks and citation omitted]). Here, defendantsubmitted admissible proof in the form of, among other things, affidavits from individuals withfirst-hand knowledge which, collectively, established that there were no modifications to thestaircase following its construction in 1953. Furthermore, the submissions set forth that no recordexisted of any prior accident or problems with the stairs which would have afforded defendantactual or constructive knowledge of a dangerous condition. Defendant also tendered an expertaffidavit from engineer Anthony Mellussi, who indicated that the stairs were in compliance withthe applicable building code existing at the time of their construction. He opined that the"Pex-Thane" finish placed on the stairs in January 2001 had a friction coefficient which met thecurrent "Standard Practice for Safe Walking Surfaces." This evidence was sufficient to meetdefendant's burden of demonstrating that it did not create a dangerous condition nor did it haveactual or constructive notice thereof (see CPLR 3212 [b]; Macri v Smith, 12 AD3d 896, 897[2004]).
In response, plaintiff did not submit any proof raising a genuine issue of fact as to actual orconstructive notice. With respect to the claim of creating a hazardous condition, plaintiffproffered an affidavit from Richard Green, an engineer, who, while unable to personally inspectthe stairs, nevertheless opined that the application of the finish to the wooden stairs made them"significantly more dangerous, especially when wet." Generally, a disagreement between expertscreates a question of credibility to be resolved by the factfinder; however, when an expert fails tosupport his or her opinion with "a factual or scientific basis," a motion for summary judgmentwill not be defeated (Stocklas v AutoSolutions of Glenville, Inc., 9 AD3d 622, 624 [2004], lv dismissed and denied 4NY3d 738 [2004] [internal quotation marks and citation omitted]; see Diaz v New YorkDowntown Hosp., 99 NY2d 542, 544 [2002]). In that regard, we note that Green did notprovide proof indicating that the Pex-Thane finish was improperly applied (see Pechtel v Gould, 9 AD3d 653,654 [2004]), nor did he provide sufficient evidence raising a question of fact regarding thealleged deficiency of the Pex-Thane finish with respect to the relevant slip resistant standard.
Moreover, also unpersuasive is Green's contention that an alleged deviation in the heightrequirement of the handrail adjacent to the stairs was a factor in this accident. Notably, plaintifftestified at his deposition that he had no recollection of seeing or using a handrail at the time hedescended the stairs. Accordingly, any alleged deviation with respect to the height of the handrailcannot be considered a proximate cause of the accident (see e.g. Stocklas v Auto [*3]Solutions of Glenville, Inc., 9 AD3d at 624). Therefore,summary judgment was properly granted in defendant's favor.
Plaintiff's remaining arguments, to the extent that they have been preserved for appellatereview, have been examined and found to be unpersuasive.
Carpinello, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: Despite certain inaccuracies oromissions in the notice of appeal, we deem it appropriate under the circumstances to treat suchnotice as valid in the interest of justice (see CPLR 5520 [c]; cf. Hopkins vTinghino, 248 AD2d 794, 795 [1998]).