FELDMAN v. DOMBROWSKY (2001)

Appeal from an order of the Supreme Court (Ferradino, J.), entered August 31, 2000 in Saratoga County, which denied defendants' motion for summary judgment dismissing the complaint.

 Plaintiffs commenced this action to recover damages for injuries sustained by plaintiff Francine Feldman (hereinafter plaintiff) when she fell on stairs while exiting defendants' restaurant.   After issue was joined and discovery conducted, defendants moved for summary judgment dismissing the complaint and now appeal from Supreme Court's denial of the motion.   We affirm.

 Plaintiffs' complaint alleges that the stairs were defective and defendants submitted no evidence to demonstrate that the stairs were free of defects.   Instead, defendants submitted the deposition testimony of plaintiffs and claim that the testimony fails to establish a defect.   As the proponents of the motion for summary judgment, however, defendants bore the initial burden to demonstrate the merit of their defense by tender of evidentiary proof in admissible form (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In the proffered depositions, plaintiff testified that she fell as she attempted to go from the top step to the next step down.   According to plaintiff, the step seemed too steep and caused her to pitch forward and fall as she tried to reach the next step down.   The State Building Code provides a maximum riser height (see, 9 NYCRR 765.3 [Table IV 765] ) and defendants submitted no evidence to demonstrate that the riser between the top step and the next step down complied with that requirement.

ORDERED that the order is affirmed, with costs.

MERCURE, J.P.

PETERS, SPAIN, CARPINELLO and ROSE, JJ., concur.