| Dufrain v Hutchings |
| 2013 NY Slip Op 08502 [112 AD3d 1212] |
| December 19, 2013 |
| Appellate Division, Third Department |
| Rodney J. Dufrain, Respondent, v TimothyHutchings et al., Appellants. |
—[*1] John R. Winn, Granville, for respondent.
Rose, J.P. Appeal from an order of the Supreme Court (Hall Jr., J.), entered August28, 2012 in Washington County, which denied defendants' motion for summaryjudgment dismissing the complaint.
Plaintiff, a furnace technician, was descending the wooden stairs leading from anoutside entrance into the basement of defendants' house when the stairs collapsed.Plaintiff then commenced this action to recover damages for his injuries, alleging thatthey were due to defendants' failure to properly inspect and maintain the stairs.Defendants moved for summary judgment dismissing the complaint. Finding, amongother things, that defendants failed to meet their burden of establishing that they hadreasonably inspected the stairs, Supreme Court denied the motion. Defendants appeal.
We affirm. The issue of whether defendants have conducted reasonable inspectionsof the premises is usually a question of fact for the jury to resolve in determining whetherdefendants fulfilled their duty to maintain the premises in a reasonably safe condition (see Rossal-Daub v Walter, 97AD3d 1006, 1007-1008 [2012]; see also Hoffman v United Methodist Church, 76 AD3d541, 542-543 [2010]). The failure to conduct such inspections will result in theimputation of constructive notice to defendants as long as a reasonable inspection wouldhave revealed the defective condition (see Rossal-Daub v Walter, 97 AD3d at1008; Hayes v Riverbend Hous.Co., Inc., 40 AD3d 500, 501 [2007]).[*2]
Here, the staircase was present when defendantspurchased the home seven years prior to the accident. It was made of untreated wood,located in a damp basement and, although defendant Timothy Hutchings used the stairsfrequently, defendants acknowledged that they did not perform any maintenance on thestaircase and did not inspect it. They claim, however, that the deterioration of thestaircase could not have been discovered. Viewing the evidence in a light most favorableto plaintiff, including the evidence that the construction of the stairs was not inaccordance with acceptable practice and there was rotting wood on the back of thestringers and underneath the runners, issues of fact exist regarding whether defendantsshould have inspected the staircase and whether a reasonable inspection would haverevealed the defective condition (see Cook v Indian Brook Vil., Inc., 100 AD3d 1247, 1248[2012]; Rossal-Daub v Walter, 97 AD3d at 1008; Oates v Iacovelli, 80 AD3d1059, 1061 [2011]; compare Anderson v Justice, 96 AD3d 1446, 1448 [2012]).In view of our conclusion, we need not address plaintiff's arguments regarding theapplication of the doctrine of res ipsa loquitor.
Spain, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, with costs.