CHAMPAGNE v. PECK (2009)

 Plaintiff, a plumber, commenced this action seeking to recover damages for injuries he sustained when the top tread on the basement stairs of a home owned by defendant collapsed as he was descending the stairs to perform work in the basement.   Supreme Court erred in granting the motion of defendant for summary judgment dismissing the complaint, and we therefore modify the order accordingly.   Defendant met her initial burden by establishing that she neither created nor had actual or constructive notice of the allegedly dangerous condition of the stairs (see Wesolek v. Jumping Cow Enters., Inc., 51 A.D.3d 1376, 857 N.Y.S.2d 859;  see generally Di Sanza v. City of New York, 11 N.Y.3d 766, 867 N.Y.S.2d 26, 896 N.E.2d 661;  Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Rios v. New York City Hous. Auth., 48 A.D.3d 661, 662, 852 N.Y.S.2d 283).   We conclude, however, that the photographs of the staircase and an expert's affidavit submitted by plaintiff in opposition to the motion were sufficient to raise a triable issue of fact whether defendant created or had constructive notice of the allegedly defective stairs (see generally Gordon, 67 N.Y.2d at 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774).

 We further conclude on the record before us that the doctrine of res ipsa loquitur provides an additional basis for denying defendant's motion (see Torres v. Cordice, 11 Misc.3d 23, 24, 812 N.Y.S.2d 731;  see generally Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143).   This, however, is not an “exceptional case in which no facts are left for determination,” and thus the court properly denied plaintiff's cross motion for summary judgment (Morejon, 7 N.Y.3d at 212, 818 N.Y.S.2d 792, 851 N.E.2d 1143).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion and reinstating the complaint and as modified the order is affirmed without costs.

MEMORANDUM: