HECKMAN v. SKELLY (2009)

 Plaintiff commenced this action seeking damages for injuries to his left leg incurred when a concrete step leading to defendants' residence collapsed.   Plaintiff had performed an inspection for a home rehabilitation and improvement company at defendant's residence and was leaving the premises at the time of the accident.   We conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.   Contrary to plaintiff's contention, the doctrine of res ipsa loquitur does not apply here because it cannot be said that the injury was “ ‘caused by an agency or instrumentality within the exclusive control of the defendant[s]’ ” (Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143). Indeed, the record establishes that defendants did not own or occupy the residence until nearly 100 years after the house and the front steps were built, and thus any negligence associated with the construction or maintenance of the front steps could be attributable to a previous owner or to the builder (see Lofstad v. S & R Fisheries, Inc., 45 A.D.3d 739, 742, 846 N.Y.S.2d 283;  Crosby v. Stone, 137 A.D.2d 785, 786, 525 N.Y.S.2d 332, lv. denied 72 N.Y.2d 807, 533 N.Y.S.2d 56, 529 N.E.2d 424).

 We further conclude that defendants established as a matter of law that they neither created the dangerous condition nor had actual or constructive notice of it (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Pelow v. Tri-Main Dev., 303 A.D.2d 940, 757 N.Y.S.2d 653), and plaintiff failed to raise a triable issue of fact to defeat the motion (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Defendants established that the front steps were constructed before they purchased the home and that they were unaware of any problems with the steps.   Indeed, plaintiff testified at his deposition that he did not consider the front steps to be a safety concern while he inspected defendants' residence, before the accident occurred.

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: