POWELL v. HOPE COMMUNITY INC

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Supreme Court, Appellate Division, First Department, New York.

Kevin POWELL, Plaintiff-Respondent, v. HOPE COMMUNITY, INC., Defendant-Appellant.

Decided: February 08, 2001

TOM, J.P., ANDRIAS, ELLERIN, RUBIN and SAXE, JJ. Wesley M. Serra, for Plaintiff-Respondent. Daniel D. Flynn, for Defendant-Appellant.

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered June 28, 2000, which denied defendant's motion for summary judgment dismissing the complaint without prejudice to renewal following the conduct of further discovery, unanimously affirmed, without costs.

 Summary judgment was properly denied in light of the affidavit of plaintiff's expert, which raised material issues of fact as to whether defendant created the stairway defect alleged by plaintiff to have caused his injury.   The evidence submitted on the motion indicates that, although the subject building was constructed prior to the enactment of the Building Code, subsequent alterations and repairs of the building, including the reconstruction of the staircase at issue, brought the building within the Code's coverage (cf., Lester v. Waterman, 242 A.D.2d 683, 664 N.Y.S.2d 927), and “[o]rdinarily, the opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standard would preclude a grant of summary judgment in favor of the defendants” (see, Murphy v. Conner, 84 N.Y.2d 969, 972, 622 N.Y.S.2d 494, 646 N.E.2d 796).