| Heckman v Skelly |
| 2009 NY Slip Op 04828 [63 AD3d 1712] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| David Heckman, Appellant, v James A. Skelly et al.,Respondents. |
—[*1] Burgio, Kita & Curvin, Buffalo (William J. Kita of counsel), fordefendants-respondents.
Appeal from an order and judgment (one paper) of the Supreme Court, Chautauqua County(Timothy J. Walker, A.J.), entered March 27, 2008 in a personal injury action. The order andjudgment granted the motion of defendants for summary judgment and dismissed the complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries to his left legincurred when a concrete step leading to defendants' residence collapsed. Plaintiff had performedan inspection for a home rehabilitation and improvement company at defendant's residence andwas leaving the premises at the time of the accident. We conclude that Supreme Court properlygranted defendants' motion for summary judgment dismissing the complaint. Contrary toplaintiff's contention, the doctrine of res ipsa loquitur does not apply here because it cannot besaid that the injury was " 'caused by an agency or instrumentality within the exclusive control ofthe defendant[s]' " (Morejon v RaisConstr. Co., 7 NY3d 203, 209 [2006]). Indeed, the record establishes that defendantsdid not own or occupy the residence until nearly 100 years after the house and the front stepswere built, and thus any negligence associated with the construction or maintenance of the frontsteps could be attributable to a previous owner or to the builder (see Lofstad v S & R Fisheries, Inc., 45AD3d 739, 742 [2007]; Crosby v Stone, 137 AD2d 785, 786 [1988], lv denied72 NY2d 807 [1988]).
We further conclude that defendants established as a matter of law that they neither createdthe dangerous condition nor had actual or constructive notice of it (see generally Zuckermanv City of New York, 49 NY2d 557, 562 [1980]; Pelow v Tri-Main Dev., 303 AD2d940 [2003]), and plaintiff failed to raise a triable issue of fact to defeat the motion (seegenerally Zuckerman, 49 NY2d at 562). Defendants established that the front steps wereconstructed before they purchased the home and that they were unaware of any problems withthe steps. Indeed, plaintiff testified at his deposition that he did not consider the front steps to bea safety concern while he inspected defendants' residence, before the accident occurred.Present—Hurlbutt, J.P., Centra, Peradotto, Carni and Gorski, JJ.