| Champagne v Peck |
| 2009 NY Slip Op 01033 [59 AD3d 1130] |
| February 11, 2009 |
| Appellate Division, Fourth Department |
| Donald Champagne, Appellant, v Linda Peck,Respondent. |
—[*1] Frank A. Bersani, Jr., Syracuse (Ryan L. Abel of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.),entered April 8, 2008 in a personal injury action. The order granted the motion of defendant forsummary judgment, dismissed the complaint and denied the cross motion of plaintiff forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion and reinstating the complaint and as modified the order is affirmed withoutcosts.
Memorandum: Plaintiff, a plumber, commenced this action seeking to recover damages forinjuries he sustained when the top tread on the basement stairs of a home owned by defendantcollapsed as he was descending the stairs to perform work in the basement. Supreme Court erredin granting the motion of defendant for summary judgment dismissing the complaint, and wetherefore modify the order accordingly. Defendant met her initial burden by establishing that sheneither created nor had actual or constructive notice of the allegedly dangerous condition of thestairs (see Wesolek v Jumping CowEnters., Inc., 51 AD3d 1376 [2008]; see generally Di Sanza v City of New York, 11 NY3d 766[2008]; Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986];Rios v New York City Hous. Auth.,48 AD3d 661, 662 [2008]). We conclude, however, that the photographs of the staircase andan expert's affidavit submitted by plaintiff in opposition to the motion were sufficient to raise atriable issue of fact whether defendant created or had constructive notice of the allegedlydefective stairs (see generally Gordon, 67 NY2d at 837-838).
We further conclude on the record before us that the doctrine of res ipsa loquitur provides anadditional basis for denying defendant's motion (see Torres v Cordice, 11 Misc 3d 23, 24 [2006]; see generally Morejon v Rais Constr.Co., 7 NY3d 203, 209 [2006]). This, however, is not an "exceptional case in which nofacts are left for determination," and thus the court properly denied plaintiff's cross motion forsummary judgment (Morejon, 7 NY3d at 212). Present—Hurlbutt, J.P., Martoche,Smith, Centra and Peradotto, JJ.