Opinion
No. 230 SSM 47.
Decided October 26, 2010.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered May 7, 2010. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, an order of the Supreme Court, Ontario County (Frederick G. Reed, J.), which had denied a motion by defendants for summary judgment dismissing the complaint, (2) granted the motion, and (3) dismissed the complaint.
Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Coriey Reynolds when he fell while descending the stairs in a residence that they rented from defendants. According to plaintiffs, the stairs detached from the wall and collapsed. With respect to actual notice, defendants presented evidence that they inspected the stairs prior to plaintiffs accident and believed that they were adequately secured. Defendants also submitted evidence that no one previously had a problem with the stairs or complained about them prior to plaintiffs accident. With respect to constructive notice, the Appellate Division noted that plaintiffs submitted an affidavit of an expert who averred that the stairs were improperly secured to the concrete wall and the defect "would have been clearly obvious to anyone with construction experience." The Appellate Division also noted that one defendant had over 30 years of experience as a contractor. The Court concluded, however, that plaintiffs did not raise a triable issue of fact with respect to actual or constructive notice because the expert's opinion was both speculative and conclusory.
Reynolds v Knibbs, 73 AD3d 1456, reversed.
Cellino Barnes, P.C., Rochester ( Robert L. Voltz of counsel), for appellants.
Bouvier Partnership, LLP, Buffalo ( Norman E.S. Greene of counsel), for respondents.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be reversed, with costs, and defendants' motion for summary judgment denied. Plaintiffs raised a triable issue of fact as to whether defendants had constructive notice of the alleged defect in the stairs ( see Gordon v American Museum of Natural History, 67 NY2d 836, 837).
In memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.