Opinion
October 7, 1992
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Callahan, J.P., Green, Pine, Boehm and Doerr, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred by permitting plaintiffs to amend their complaint to add a cause of action pursuant to Labor Law § 240 (1). Plaintiff Harry Monroe was injured when he slipped and fell on a permanently installed, metal, exterior stairway located between two sections of a building under construction. Labor Law § 240 (1) does not apply where plaintiff falls on a permanently installed stairway (see, Cliquennoi v Michaels Group, 178 A.D.2d 839; Barnes v Park Cong. Church, 145 A.D.2d 889, lv dismissed 74 N.Y.2d 650; Fiore v MCT Constr. Corp., 112 A.D.2d 265; Ryan v Morse Diesel, 98 A.D.2d 615).
Supreme Court properly denied defendants' motion for summary judgment dismissing plaintiffs' causes of action pursuant to Labor Law §§ 200 and 241 (6). Defendants argue that plaintiffs failed to prove that defendants had notice of an icy condition on the stairs. As the moving parties, defendants were obligated to submit proof in admissible form sufficient to demonstrate that they did not have notice of a dangerous condition on the stairway as a matter of law. That they failed to do. Defendants offered nothing to refute plaintiff's allegations that ice had built up on the stairs to a depth of two inches in spots and was caused by the lack of gutters on the building. The mere fact that plaintiff admitted that it was snowing on the day of his accident does not prove that ice had not accumulated for a time sufficient for defendant to have either actual or constructive notice of it (cf., Newsome v Cservak, 130 A.D.2d 637; Rothrock v Cottom, 115 A.D.2d 242, lv denied 68 N.Y.2d 601).