Luis Carrion, Appellant,v.John Faulkner,, et al., Respondents.BriefN.Y.April 26, 2016T'fie Law Offices of .J'trno{d 'E. Di] oseyfi P.c. March 8, 2016 Hon. John P. Asiello Clerk of the Court so 'Broaaway Suite 1000 :New lforfi, :Ne1v lforfi 10004 212.344·7000 fax 212.344.7878 www .ad) {alv .cmn State of New York Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, NY 12207-1095 Re: Carrion v. Faulkner APL-2015-00323 Dear Mr. Asiello: Plaintiff-Appellant submits this as his response to the Court's sua sponte determination pursuant to §500.11 of the Court's Rules of Practice that it may choose to examine the merits of this appeal on the basis of the Appellate Division record and briefs, the opinions in the courts below, and letter submissions on the merits from each counsel. Rule 500.1(f)- Disclosure statement- Inapplicable to the Plaintiff herein. Preliminary remarks This appeal presents a combination of errors of law that lead to the court at nisi prius and the Appellate Division to reach the erroneous conclusion Defendants were entitled to summary judgment dismissing Plaintiff's Complaint. Staten 108 ~7'vtain Street, Statenls{{md; :New ljorfi 10307 718.9c'L~c.8902- fax 718.984.8982 Some of those errors involved the clear (albeit inexplicable) choice by both courts not to follow a number of cornerstone legal principles applicable to motions for summary judgment, which is not uncommon in situations wherein a court improperly choses to engage in issue resolution rather than issue finding. Had these errors not been made, it is clear summary judgment would not have been warranted as a matter of law. However, there were also errors committed which were far more problematic in that they required the courts below to simply disregard established precedents and, in the case of the Appellate Division, to misapply its own prior decisions. Before proceeding to a discussion of those two distinct types of errors, a concise factual presentation is necessary. Procedural History of the Case: On March 20, 2013, a final Decision/Order of the Supreme Court, Bronx County (Kenneth L. Thompson, J.) was entered in the Office of the Bronx County Clerk, which granted Defendants' motion for summary judgment and dismissed Plaintiff's complaint. A final Decision and Order of the Appellate Division, First Department dated and entered June 9, 2015, affirmed the Decision/Order of the Supreme Court dismissing Plaintiff's complaint. (129 A.D.3d 456, 9 N.Y.S.3d 868 (Mem), 2015 N.Y. Slip Op. 04762 [1st Dept. 2015]). This Court granted Plaintiff's motion for leave to appeal by its Decision and Order of December 17, 2015. (26 N.Y.3d 914, 44 N.E.3d 938, 23 N.Y.S.3d 640 [Table], 2015 WL 9142072, 2015 N.Y. Slip Op. 93883). 2 .Arno{dE. 1JiJoseyli, 1).c. The Relevant Facts In the posture this matter reaches this Court, the evidence is presented below in a light most favorable to Plaintiff, as it must be. On April 2, 2006, Plaintiff was visiting friends who resided at 2522 University A venue in the Bronx. He entered the apartment building from University A venue and made his way to the stairway located on the right side of the building. (59, 61). 1 Plaintiff walked to the fourth t1oor and knocked on the door of his friend's apartment. (71, 72). Learning they were not at home, Plaintiff attempted to make his way down the stairway (73 ). The incident took place as Plaintiff was descending the stairway between the third and second t1oors. (75). (75). At his deposition, Plaintiff testified as follows: Q. Did something cause you to fall? A. When I reached the 3rd floor, it's kind of like worn down -- actually all of the stairs were kind of worn down, like shaved and worn down. Q. And did the shaved condition of the 3rd floor cause you to fall? A. Yes. *** Q. Was any liquid on that 3rd f1oor? A. Liquids? Q. Yes. A. No. 1 Numbers in parentheses refer to pages in the Appellate Division Record on Appeal. 3 .:Arno (c( 1£. 1J i] os ey fz. 'P. c. When asked to identify the location of the incident, Plaintiff testified that his fall took place at the top or first step of the stairway leading from the third floor to the landing between the second and third floors. (77-78). He also identified a photograph marked as Exhibit "C" (151) at his deposition as depicting the place where this incident occurred. He testified as follows: 4 Q. And there is also a landing on the 3rd floor and a landing on the 2nd floor. Do any of these photographs depict the 3rd floor landing or the 3rd floor? (Defendants Exhibits A through E 13 handed to witness and perused by him) A. Here. (Witness indicates on an exhibit) MR. URRETA: You have indicated Defendants Exhibit C. Q. A. Q. A. Q. A. Q. A. The 3rd floor landing which is a section of the photograph contains the-- we have called it a zigzag line, correct? Yes. That 3rd floor landing, what was the size of that? Ofthe 3rd floor? The 3rd J:1oor landing. Maybe 8 x 10. 8 feet x 10 feet. Where within that approximate 8 to 10 feet area did you fall? You are talking about the floor or the landing? The floor is 8 x 1 0. The landing is like 4 feet, 6 feet. Q. Where within that 8 x 10 feet of the 3rd floor did you fall? A. At the top of the step, the beginning. (Witness indicates on Defendants Exhibit C) Q. Now, I will ask you to clarify something for me if you can, and if you don t know tell me you don't know: The 3rd floor that is depicted in Defendants Exhibit C contains a zigzag border; is that correct? A. Q. Yes. Is that zigzag border the first step on the way down, or does it connect with the portion of marble - .Jlrno{d' 'E. 'Di]oseyfi, T.c. 5 A. The portion of marble. MR. ALONSO: In other words, it's the marble that is the step? THE WITNESS: Yes. MR. ALONSO: But it's on the same level as the zigzag pattern on that first step, but the step itself is made out of marble; is that correct, Mr. Carrion? THE WITNESS: Yes. Q. A. Q. I just want to make sure I am clear: Using Defendants Exhibit C, if you want to get from the portion of the floor that has the zigzag pattern onto the marble that is right next to it, do you have to step down onto that piece of marble or do you just walk forward? Walk forward. So would it be fair to state that piece of marble right next to the zigzag pattern is the first step? (Counsel indicates on Defendants Exhibit C) A. Yes. Q. That's the first step from the landing between the-- withdrawn. That's the first step from the 3rd floor to the landing between the 3rd floor and the 2nd floor? A. Yes. Q. Immediately before the accident occurred was one foot in front of the other? A. Q. A. Q. A. Q. A. Q. A. Yes. Which foot was that? My left foot. Immediately before you slipped did your left foot come down on the zigzag pattern? Marble step? Or someplace else? The marble step. At the time that your left foot stepped onto the marble step, where was your right foot? Behind me. When your left foot stepped onto the marble step, was any part of your left foot hanging out over the step, over the nose of the step? Yes. Q. How much of your foot was hanging over the nose? A. Half. (76-79) *** Jtrnoftf T. 'DiJ oseyfz, T.C. Q. When you placed your left foot down on the step did your left foot slip? A. When I placed it down on the marble? Q. On the marble, yes. A. Yes. Q. Did it slip forward? Left? Right? Or something else? A. Forward. Q. When your left foot slipped forward did that cause you to fall? A. Yes. Q. And did you fall forward? Left? Right? Or something else? A. Backwards. (Witness indicates) Q. Where did you land? A. On the landing. (81) As defense counsel continued to question Plaintiff, he further confirmed the incident was caused by the worn, "shaved" condition of that top step. As Mr. Carrion testified: Q. A. Q. A. (91-92) What I am trying to get at is: Your foot slipped because the marble was slippery not because there was any sand or anything like that on the marble? Right. It was slippery. This marble was slippery and dry; is that correct? No. Slippery; shaved; worn out. Repeatedly during his deposition Plaintiff, as he has done throughout this litigation, explained to counsel that his foot was caused to slip as a result of the worn condition of the top step in question. Plaintiffs affidavit in opposition to Defendants' motion (271-274) makes perfectly clear the cause of the incident in question. 6 ..Arno{d'E. 1JiJoseyli, 1).c. I was caused to fall on that portion of the stairway located between the third and second floor. As I descended from the third floor towards the landing between the third and second floor, my left foot was caused to slip off of the worn edge of one of the marble steps. All of the steps along that portion of the stairway were worn and had a rounded, shaved, cupped appearance to their edge. As I placed my left foot on the top step of that potion of the stairway, the worn, shaved edge caused me to slip and lose my balance. I have reviewed the photographs attached to this affidavit and all of them are fair and accurate depictions of the area of the accident at the time of my accident. Plaintiff's Highly Qualified Licensed Professional Engineer In addition to the foregoing testimony, affidavit, and photographic evidence concerning the precise identification and depiction of the defective condition, which caused the fall, Plaintiff also included the affidavit of a licensed professional engineer who conducted an onsite examination and evaluation of the stairway in question within days of the incident. A summary of the expert's opinions were previously disclosed in Plaintiffs CPLR §3101(d) expert exchange. His detailed affidavit (275-279) was based on a thorough review of the available evidence as well as his personal examination of the accident scene. (This was in stark contrast to the disclosure of Defendants' 7 .JlrnoU£ 'E. 1JiJoseyli, 'P.C. architectural expert which was disclosed only with the instant motion and long after discovery was complete.) Plaintiff's engineer inspected the stairway and step in question on April 5, 2006. In his expert opinion, as set forth both in the Plaintiffs CPLR §310l(d) exchange as well his affidavit, the accident and injuries sustained by Plaintiff Luis Carrion on April 2, 2006 were due to Defendants': ( 1) lack of proper inspection and maintenance of these steps; (2) failure to surface the steps with non-skid materials; and (3) having permitted irregularities in the walking surface to deteriorate to the point where they present a serious hazard to people using the stairway. (Note: nothing in that opinion relied simply on a naturally worn surface of the marble step as inaccurately stated by the Appellate Division in its opinion.) Plaintiffs expert found the front edges of steps to have been worn smooth due to years of wear and neglect that long pre-dated the incident on April 2, 2006 involving Mr. Carrion. In addition, the expert found there was no non-skid surfacing placed on any of the treads. The extensive photographic evidence contained in the Record (224-246, 273,278, 297, 301, 315-320) offers additional admissible and compelling visual evidence corroborating every aspect of Plaintiffs theory of liability including the deplorable and deteriorated condition of the marble steps and landing, the lack of proper maintenance of the steps, the absence of surfacing with any non-skid 8 .Jtrno{d T. 'DiJoseyli, P.c. materials and the existence of serious irregularities in the walking surface. The photographic proof was also strong (admissible) evidence with respect to actual and constructive notice. The testing done by Plaintiffs engineering expert revealed the marble stair treads in question had a dangerously low coefficient of friction and good and accepted engineering safety practices required the placement of a non-skid surface on the marble treads. Again, specifically, Plaintiffs expert also found with respect to the step in question, the bullnose portion of the tread had been worn down over an extended period of time due to lack of proper maintenance and repair of the subject marble treads. The worn, slippery surface failed to provide a proper foot to stair interface and caused Plaintiff's fall. Independent of the deviations from good and accepted engineering safety practices Mr. Fein expert also opined that stairway in question is in violation of §27-375(h) of the New York City Administrative Code which "requires that steps and landings of steps shall be built of or surfaced with non-skid materials." Here, "The subject tread surface was composed pre-cut marble which are inherently slippery and resulted in coefficient of friction measurements at the time of my inspection of between .38 and .42. Good and accepted engineering safety 9 :Arno{dE. Di]oseyli, 'P.C. practice would require stairs of this type to have coefficient of friction of at least .70 to insure adequate slip resistance under all anticipated conditions." No non-skid surfacing was installed on the steps. In addition Mr. Fein found that the steps in question violated sections 27-127 and 128 of the New York City Administrative Code which require the premises to be maintained in "good repair."2 Based on his personal inspection of the stairway and step in question, Mr. Fein concluded with a reasonable degree of safety engineering certainty, Mr. Carrion's accident and injuries were a direct result of the dangerous, defective and improperly maintained stairway and step and the failure to install non-skid materials to the steps surface. The step that Mr. Carrion slipped and fell on was worn and the nosing of this particular step was in a worn and slippery condition as 2 Defendant's expert architect offered nothing more than his opinion that the sections in question are not applicable to this building. All such questions of law are for a court alone to determine after reviewing each side's proof on the issue as well as its own independent review of the Code sections. More important, however, is the fact that, even if a court were to find the Code sections do not apply, Plaintiffs expert clearly established that the stairs in question were in a longstanding, dangerous and defective condition independent of any statutory violation. Moreover, Defendants' expert ignored the deposition testimony of Defendant John Faulkner (171) where he testified to a substantial renovation ofthe major systems in the building between 1987 and 1989 as well as continuing minor renovations from 1989 up to and including the time of this incident in April, 2006. As this Court has repeatedly stressed, a property owner has a continuing duty to maintain his premises safe from foreseeable harm, irrespective of the absence of a statutory obligation. Kellman v. Tiemann Assoc., 87 N.Y.2d 871,638 N.Y.S.2d 937 (1995); Jacqueline S. v. City of New York, 81 N.Y.2d 288, 598 N.Y.S.2d 160 (1993). Thus, whether there is a prescribed "Code" requirement, the standard enunciated under Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 (1976) and Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55 (1976), would still apply and the duty owed by Defendants would remain one of "reasonable care under the circumstances [with] foreseeability [as] a measure of liability." (40 N.Y.2d at 241). 10 Arno{cfE. DiJoseyli, 'P.C. noted above. No non-skid strips or other material were installed on the step. These conditions developed due to years of wear and the failure of the building owner and management to reasonably maintain and repair the steps. THE LEGAL ISSUES BEFORE THIS COURT Plaintiff maintains that in its superficiality, the Appellate Division opinion is fatally flawed in a number of critical aspects. In short, it is an injudicious attempt to reach a predetermined result by ignoring a myriad of legal principles and precedents that would mandate precisely the opposite holding. (The opinion of the motion court is equally flawed and erroneous.) As noted above, a number of errors involved the avoidance of foundation legal principles applicable to motions for summary judgment. While those errors will certainly be addressed below, the errors requiring the most attention by this Court involve the disregard of established precedents and, in the case of the Appellate Division, the misapplication of its own prior decisions. These particular errors had the implicit effect of sanctioning an erroneous standard by which to dismiss premises liability cases, which flies in the face of this Court's well-established standard of review in such cases, and of misapplying a generally accepted principle of non-liability (relating to marble steps) to cases wherein that principle has no application. 11 ..Jtrno{a 'E. ViJoseyli, P.c If one takes the time to juxtapose the Appellate Division's rather hollow opinion against the controlling authorities relating to premises liability, it is rather obvious that this appeal was decided in a vacuum, which never considered just how much of an aberration would be created by granting the Defendants herein summary judgment. This was not a simple "garden variety" case in which the inherent "smoothness" of marble alone is claimed to have been the cause of Plaintiffs serious accident. In fact, any legitimate reading of the record makes it clear this was anything but that type of case. Quite to the contrary, the facts herein fit perfectly into the existing structure of triable premises liability cases and should never have been viewed uncritically as nothing more than a member of a generic class of dismissible "marble-step" cases. Thus the issue presented for review by this Court involves the complete misinterpretation and misapplication of the legal principles and authorities relevant to premises cases such as the one at bar. This can be succinctly summarized as follows: In adopting the position that a "worn marble step edge" is "not an actionable defect," the Appellate Division cited two of its previous decisions involving falls on interior stairways. However, upon examination of those 12 A.rno{d'E. 'DiJoseyli, 'P.C. decisions, it is clear that neither apply to the facts herein nor stand for the proposition stated in the Appellate Division opinion. Preliminarily it is important to note (and, thus, conceded by Plaintiff) that, typically, "slip and fall" cases are dismissed when the alleged defect and cause of the fall is no more than the slippery nature of marble stairs or floors in their natural condition. Here, however, that was simply not the case since Plaintiff offered credible expert engineering proof that the condition complained of was not slipperiness alone. Nor was it simply a long term condition of gentle, even wearing away of the marble. In fact, Plaintiffs expert conducted an evaluation of the stairway in question within days of the incident and found the front edges of steps to have been worn smooth due to years of wear and neglect that long pre-dated the incident on April 2, 2006. In addition, he found that there was no non-skid surfacing placed on any of the treads. The extensive photographic evidence contained in the Record (224-246, 273,278,297,301, 315-320) also offered compelling visual evidence corroborating every aspect of Plaintiffs theory of liability including: ( 1) the dilapidated and badly deteriorated condition of the marble steps and landing; (2) the lack of proper maintenance of the steps; (3) the absence of surfacing with any non-skid materials; 13 .Jtrno[a 'E. 'DiJoseyfi, P.c. and ( 4) the existence of senous irregularities in the walking surface. The photographic proof was also strong (admissible) evidence with respect to actual and constructive notice. The testing done by Plaintiffs expert also revealed that the marble stair treads had a dangerously low coefficient of friction and that good and accepted engineering safety practices required the placement of a non-skid surface on the marble treads. Specifically, Plaintiffs expert found, with respect to the step in question, the bullnose portion of the tread had been worn down over an extended period of time due to lack of proper maintenance and repair of the subject marble treads. The worn, slippery surface failed to provide a proper foot to stair interface and caused Plaintiffs fall. Independent of the deviations from good and accepted engineering safety practices Plaintiffs expert also opined that stairway in question is in violation of §27-375(h) of the New York City Administrative Code which "requires that steps and landings of steps shall be built of or surfaced with non-skid materials." No non-skid surfacing was installed on the steps. In addition Thus, Plaintiffs expert concluded, with a reasonable degree of safety engineering certainty, Mr. Carrion's accident and injuries were a direct result of 14 Arno{c{ :E. 1JiJoseyli, P.c. the dangerous, defective and improperly maintained stairway and step and the failure to install non-skid materials to the steps surface. Despite the clear and quite credible admissible evidence comprised of expert engineering proof, photographs and sworn testimony (including admissions by Defendant), both the motion court and the Appellate Division chose to treat this case as little more than a frivolous claim without the slightest legal merit. Giving such "short shrift" to a claim that fully met the legal standards created by this Court with respect to premises liability cases while also failing to follow any of the foundation principles of law applicable to a motion for summary judgment, created an anomaly which must be corrected by way of a definitive ruling by this Court. PLAINTIFF'S UNEQUIVOCAL TESTIMONY AND AFFIDAVIT, THE COMPELLING PHOTOGRAPHIC EVIDENCE AND THE AMPLY SUPPORTED OPINIONS OF PLAINTIFF'S ENGINEERING EXPERT, DEMONSTRATED THE EXISTENCE OF TRIABLE ISSUES OF FACT WITH RESPECT TO DEFENDANTS' LIABILITY AND REQUIRED THEIR MOTION FOR SUMMARY JUDGMENT TO BE DENIED Preliminary All one need do to realize the clear nature of the error committed by the courts below is to read their opinions. When that is done, it is readily apparent that both courts: ( 1) never engaged in issue "finding" but instead went out of their way to actually engage in issue "resolution" which is specifically prohibited when 15 .Jtrno{t£ 'E. 'DiJoseyfi, P.c. deciding a motion for summary judgment; (2) made their own findings of fact as to the mechanics of the accident, which are not borne out by the record and which they were prohibited from doing; (3) improperly chose to discredit Plaintiffs engineering expert's opinions while accepting, as Gospel, Defendants' expert's factual resolution of why the accident was attributable to the Plaintiffs manner of descending the stairs; ( 4) simply ignored every cornerstone legal principle applicable to a motion for summary judgment; and (5) misapplied previous Second Department holdings which had no relevance to this case. The General Legal Principles Applicable to a Motion for Summary Judgment that Were Ignored by the Courts Below To obtain summary judgment, a movant must come forward with admissible evidence showing the lack of merit to his opponent's cause of action. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988). Additionally, before summary judgment may be granted, it must clearly appear that no triable issue of fact is presented. DiMenna & Sons, Inc. v. City of New York, 301 N.Y. 118, 92 N.E.2d 918 (1950); Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93 (1968). Summary judgment is the procedural equivalent of a trial (Falk v. Goodman, 7 N.Y.2d 87, 195 N.Y.S.2d 645 [1959]) and a court is not authorized to try factual issues in a summary manner. Esteve v. Abad, 271 App. Div. 725, 68 N.Y.S.2d 322 16 .:Jtrno{tf 'E. Vi]oseyli, T.c. (1st Dept. 1947). However, that is precisely what the courts below did in this case and their own opinions unmistakably confirm this. The function of the court on a motion for summary judgment is that of issue finding, not issue resolution. Decision Concepts, Inc. v. Citibank, N.A., 91 A.D.2d 965, 458 N.Y.S.2d 586 (1st Dept. 1983); Esteve v. Abad, supra. In exercising that function, the court must construe the evidence presented in a light most favorable to the non-moving party. Waldron v. Wild, 96 A.D.2d 190, 468 N.Y.S.2d 233 (4th Dept. 1983 ). Here, the courts' own opinions leave no doubt that they reached their erroneous conclusions only as a direct result of resolving every factual issue in favor of Defendants. In fact, the court must accept as true the opposing party's evidence and any evidence submitted by the movant that favors the opposing party. Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 (3d Dept. 1964). The courts below did precisely the opposite. The drastic remedy of summary judgment should not be granted when there is any doubt as to the existence of a triable issue of fact or where such an issue is even arguable. Falk v. Goodman, supra; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Gale v. Kessler, 93 A.D.2d 744, 461 N.Y.S.2d 295 (1st Dept. 1983); Bolender v. Fred Cammann Productions, Inc., 78 A.D.2d 233, 434 N.Y.S.2d 226 (1st Dept. 1980). Plaintiff submits it is 17 .Jtrno{a'E. 'DiJoseyli, T.c. impossible to read the Record in this case and not reach the conclusion that this mandate was simply not followed by the courts below. In O'Connor-Miele v. Barhite & Holzinger, 234 A.D.2d 106, 650 N.Y.S.2d 717 (1st Dept. 1996), the court stated the core principle to be scrupulously followed: "[O]n a defendant's motion for summary judgment, opposed by plaintiff, we are required to accept the plaintiffs pleadings, as true, and our decision 'must be made on the version of the facts most favorable to [plaintiff]'. (Henderson v. City of New York, 178 AD2d 129, 130, quoting Strychalski v. Mekus, 54 AD2d 1068, 1 069). Applying that standard to the matter herein, we find that the evidence presented by plaintiff created a material question of fact which precludes summary judgment." This Court can plainly see this is not a situation wherein a plaintiff facing a potential dismissal or damaging omissions or admissions in a previous deposition embarks on a belated attempt to salvage his case. If anything, Mr. Carrion's deposition, authentication of photographic evidence, affidavit and expert proof were more than adequate to defeat Defendants' motion on the merits. What more could he have done? Probably the most striking deficiency in Defendants' moving papers is the fact that they failed in their burden of establishing entitlement to judgment as a matter of law (Beecher Greenman Constr. Corp. v. Incorporated Vil. of Northport, 18 .Jtrno{d'E. 'DiJoseyli, 'P.C. 209 A.D.2d 565, 619 N.Y.S.2d 293 (2d Dept. 1994); Zuckerman v. City of New York, 49 N.Y.2d 557, 562; 427 N.Y.S.2d 595 [1980]) by "tendering sufficient evidence to demonstrate the absence of any material issues of fact." Jagel Family Assocs. v. Havenbrook Assocs., 209 A.D.2d 585, 619 N.Y.S.2d 655 (2d Dept. 1994); see also, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 (1986). As To Premises Liability Cases Generally and Specifically those involving Code violations or Violations of Multiple Dwelling Law §78 Since the decisions in Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 (1976) and Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55 (1976), the duty owed by a property owner for dangerous condition on his premises has been one of "reasonable care under the circumstances [with] foreseeability [as] a measure of liability." (40 N.Y.2d at 241). Also see, Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831 (1983); DeMarrais v. Swift, 283 A.D.2d 411, 724 N.Y.S.2d 77 (2d Dept. 2001). In Rivera v Nelson Realty, 7 N.Y.3d 530 825 N.Y.S.2d 422 (2006), this Court explained the scope of its holding in Basso, and reiterated another well settled legal principle; that under Multiple Dwelling Law § 78, a landlord has a duty to repair dangerous conditions in areas of the property where he retains control. 19 Jtrno[d 'E. 'Di]oseyli, P.c. As this Court has repeatedly stressed, a property owner has a continuing duty to maintain his premises safe from foreseeable harm, irrespective of the absence of a statutory obligation. Kellman v. Tiemann Assoc., 87 N.Y.2d 871, 638 N.Y.S.2d 937 (1995); Jacqueline S. v. City of New York, 81 N.Y.2d 288, 598 N.Y.S.2d 160 (1993). Thus, even if it is ultimately determined that the Code sections alluded to by Plaintiffs expert do not apply to this building, the standard enunciated under Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564 (1976) and Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55 (1976), would still apply and the duty owed by defendant owner would remain one of "reasonable care under the circumstances [with] foreseeability [as] a measure of liability." (40 N.Y.2d at 241). Cf., Elliott v City ofNew York, 95 N.Y.2d 730, 724 N.Y.S.2d 397 (2001). However, Multiple Dwelling Law §78 unquestionably applies to the stairway in question so as to form a separate basis for liability. Significantly, Multiple Dwelling Law ("NIDL") §78 Imposes a "nondelegable duty" on owners to keep their premises in good repair.3 Accordingly, an owner is not entitled to summary judgment when the state of repair or maintenance of a multiple dwelling leaves any question of fact. It is only when an owner is able to demonstrate as a matter of law that the premises are in 3 Plaintiff specifically alleged a violation of MDL §78 in his Complaint (22). 20 ..'Arno{cfT. DiJoseyli, P.c. good repair that a court may find the duty under MDL § 78 has been met. That is certainly not this case despite counsel's unilateral claim to the contrary. Rosenberg v. Equitable Life Assur. Soc. of U.S., 79 N.Y.2d 663, 595 N.E.2d 840, 584 N.Y.S.2d 765 (1992); Parsons v. City of New York, 195 A.D.2d 282, 599 N.Y.S.2d 594 (1st Dept. 1993); Dowling v. 257 Associates, 235 A.D.2d 293, 652 N.Y.S.2d 736 (1st Dept. 1997); Bonifacio v. 910-930 Southern Blvd. LLC, 295 A.D.2d 86, 743 N.Y.S.2d 105 (1st Dept. 2002); Morales v. Felice Properties Com., 221 A.D.2d 181, 633 N. Y.S.2d 305 (1st Dept. 1995). As this Court held in Mas v. Two Bridges Associates by Nat. Kinney Com., 75 N.Y.2d 680, 554 N.E.2d 1257, 555 N.Y.S.2d 669 (1990): "The owner of a multiple dwelling owes a duty to persons on its premises to maintain them in a reasonably safe condition (Multiple Dwelling Law § 78). This duty is nondelegable and a party injured by the owner's failure to fulfill it may recover from the owner." Neither the motion court nor the Appellate Division paid any attention to this independent statutory basis for liability which, in and of itself, required the denial of the motion for summary judgment. It is also clear that questions regarding causation, foreseeability and negligence are questions of fact which are reserved for the jury's consideration. See: O'Neill v. Port Authority of New York and New Jersey, Ill A.D.2d 375, 489 N.Y.S.2d 585 (2d Dept. 1985); Derdiarian v. Felix Contracting Com., 51 N.Y.2d 21 .Jtrnoli£ 'E. 1Ji]oseyfi, P.c. 308, 434 N.Y.S.2d 166 (1989); Kriz v. Schim, et ano., 75 N.Y.2d 25, 550 N.Y.S.2d 584 (1989); Dupell v. Levesgue, 198 A.D.2d 639, 603 N.Y.S.2d 369 (3d Dept. 1993); Consolidated Edison Company of New York, Inc. v. Jet Asphalt Corporation, 132 A.D.2d 296, 522 N.Y.S.2d 124 (1st Dept. 1987). These jury questions, which clearly exist in this case, were simply ignored by the motion court and the Appellate Division. The Burden of Proof Imposed on a Defendant Moving for Summary Judgment in a Premises Case with Respect to the Issue of Notice. A defendant moving for summary judgment in a "premises" case has "the initial burden of establishing the lack of actual or constructive notice [ cits. omitted]." (Park v. Caesar Chemists, 245 A.D.2d 425, 666 N.Y.S.2d 679 [2d Dept. 1997]). Moreover, "[p ]roof of lack of actual notice alone ... [is] insufficient [cit. omitted]." (Park, supra). Here, other than conclusory allegations on the part of Defendants, there was no evidence offered by Defendants with respect to lack of actual or constructive notice. Thus, a defendant, as movant, must also "show lack of constructive notice, in that the condition which caused the accident was not visible or apparent for a sufficient length of time to permit ... [defendant], in the exercise of reasonable care, to remedy the defect [cits. omitted]." (Park, supra, at 666 N.Y.S.2d 680). 22 .Arno{aT. 'Di]oseyfi, P.c. As to Notice Generally Although the court below chose to simply ignore the issue of notice in favor of making impermissible factual determinations as to how the accident occurred and why it was not Defendants' fault, it is indisputable that Plaintiff amply demonstrated Defendants had both actual and constructive notice of the deplorable condition of the stairway in question. The question of notice, actual or constructive, is generally a fact issue for a jury (Berkowitz v. Prudential Savings Bank, 269 App. Div. 988, 58 N.Y.S.2d 280 [2d Dept. 1945]; Bordonaro v. Bank of Blaisdell, 285 N.Y. 606, 33 N.E.2d 541 [1941]; Kelsey v. Port Authority of New York and New Jersey, 52 A.D.2d 801, 383 N.Y.S.2d 347 [1st 1976]; Swiderski v. Steinhom, 291 N.Y. 783, 33 N.E2d 244 [1944]). Moreover, if a defendant has a duty to conduct reasonable inspections, the Issue of actual or constructive notice is irrelevant. (Weller v. Colleges of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990 [4th Dept. 1995]). In any event, however, the question of notice "is best submitted to and evaluated by the jury" (Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717 [1978]). Accord, Taylor v. Bankers Trust Co., 80 A.D.2d 483, 438 N.Y.S.2d 138 (1st Dept. 1981); Prowse v. State, 70 A.D.2d 748, 416 N.Y.S.2d 889 (3d Dept. 1979); Kelsey v. Port Authority, 52 A.D.2d 801 (1st Dept. 1976); McCoy v. City of New York, 38 23 .Jtrno{cfT. 1JiJoseyli, P.c. A.D.2d 961 (2d Dept. 1972); Greco v. Acme Super Markets, Inc., 17 A.D.2d 899, 233 N.Y.S.2d 406 (4th Dept. 1962). Here, there was no possible way Defendants could demonstrate they lacked both actual and constructive notice or even credibly deny they had both. However, the courts below simply ignored this by making the erroneous finding that no liability attached as a matter of law based on a completely impermissible basis supported by two wholly inapplicable decisions. As to Actual Notice Actual knowledge (notice) exists not only when a party owing the duty of care is told of the presence of a condition but also, when such a party is present and sees the condition or it is so plainly visible, that he should have seen it. Time is not an element in such a case. Actual knowledge may be inferred from the circumstances despite professions of ignorance (Woloszynowkski v. N.Y.S.R.R. Co., 254 N.Y. 206, 209, 172 N.E. 471 [1930]; cf., McGill v. United States, 200 F.2d 873, [3d Cir. 1953]). If a party owing a duty to maintain, makes regular inspections of the premises where the condition is in plain view that is actual knowledge. "The opportunity for knowledge stands for the purpose of the case as actual knowledge." (Kunz v. City of Troy, 104 N.Y. 344, 349; 10 N.E. 442 [1887]). Accord, Rhabb v. New York City Housing Authority, 41 N.Y.2d 200, 391 N.Y.S.2d 540 (1976). 24 Arno{a 'E. 'DiJoseyli, T'.c. With an on-site, full-time Superintendent who lived in the building and was responsible for cleaning the stairs (175-176) it cannot be disputed that Defendants had actual knowledge of the condition in question. As to Constructive Notice Constructive notice exists when a sufficient length of time has passed so that, in the exercise of reasonable care in performing the duty to maintain, a condition should have been discovered (Kehoe v. Incorporated Village of Valley Stream, 44 N.Y.2d 704, 405 N.Y.S.2d 445 [1978]; Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717 [1978]; Taylor v. Bankers Trust Co., 80 A.D.2d 483, 439 N.Y.S.2d 138 [1st Dept. 1981]; Prowse v. State, 70 A.D.2d 748, 416 N.Y.S.2d 889 [3d Dept. 1979]; Kelsey v. Port Authority, 52 A.D.2d 801, 383 N.Y.S.2d 347 [1st Dept. 1976]; McCoy v. City ofNew York, 38 A.D.2d 961,331 N.Y.S.2d 892 [2d Dept. 1972]; Greco v. Acme Super Markets, Inc., 17 A.D.2d 899, 233 N.Y.S.2d 406 [4th Dept. 1962]). Constructive notice will also be found in situations where a defect is visible and apparent and has been in that condition so long that the defendant is presumed to have seen it, or to have been negligent in failing to see it. (Shirman v. N.Y.C.T.A., 264 A.D.2d 832, 695 N.Y.S.2d 582 [2d Dept. 1999] and the authorities cited therein). 25 ..'Arno{cfT. 'DiJoseyli, T.c. Moreover, if a defendant has a duty to conduct reasonable inspections, the Issue of actual or constructive notice is irrelevant. (Weller v. Colleges of the Senecas, 217 A.D.2d 280,635 N.Y.S.2d 990 [4th Dept. 1995]). Here, Plaintiffs expert's affidavit clearly established the defective condition unquestionably existed over a protracted length of time as the markedly worn condition of the steps would have taken many months, if not years, to develop. Such a condition is one that an owner or manager of a premises could and should have taken notice of in the exercise of due care. More importantly, Defendant John Faulkner testified at this deposition (181) that the steps would be replaced when they were broken. Clearly, Defendants and their employees made close regular inspections of the steps. Here, there can be no dispute that Defendants had both actual and constructive notice of the condition of the stairs in question. Photographic Evidence as Proof of Constructive Notice It is well-settled law in this State that photographs may be used to prove constructive notice of an alleged defect if the photographs were taken reasonably close to the time of the accident and depict the defect in a condition similar to that at the time of the accident. This is because photographs may establish that a condition was visible and apparent or that it had to have come into being over such a length of time that 26 .:A..rno{d 'E. 'DiJoseyli, P.c. knowledge thereof should have been acquired by the defendant. (Taylor v. N.Y.C.T.A., 48 N.Y.2d 903, 424 N.Y.S.2d 888 [1979]; Batton v. Elghanayan, 43 N.Y.2d 898, 403 N.Y.S.2d 717 [1978]; Moons v. Wade Lupe Const. Co. Inc., 24 A.D.2 3d 1005, 805 N.Y.S.2d 205 (3d Dept. 2005); DeGiacomo v. Westchester County Healthcare Corp., 295 A.D.2d 395, 743 N.Y.S.2d 548 [2d Dept. 2002]; Straus v. New Wah Fung Corp., 269 A.D. 2d 140, 703 N.Y.S.2d 7 [1st Dept. 2000]; Reardon v. Benderson Development Co., Inc., 266 A.D.2d 869, 697 N.Y.S.2d 893 [41h Dept. 1999]; Vara v. Benderson Development Co., Inc., 258 A.D.2d 932, 685 N.Y.S.2d 360 [4th Dept. 1999]; Atkins v. Francesca Realty Associates, 238 A.D.2d 457, 657 N.Y.S.2d 927 [2d Dept. 1997]; Zavaro v. Westbury Property Inv. Co., 244 A.D.2d 547; 664 N.Y.S.2d 611 [2d Dept. 1997]; Kniffin v. Thruway Food Markets, Inc., 177 A.D.2d 920, 576 N.Y.S.2d 678 [3d Dept. 1991]; Farrar v. Teicholz, 173 A.D.2d 674, 676,570 N.Y.S.2d 329 [2d Dept. 1991]). Here, the Court can clearly see that the defective condition unquestionably existed over a protracted length of time thereby establishing notice (or at least a question of fact with respect thereto) on the part of Defendants. The condition in the photographs is one that could not have come into existence only shortly before the accident. In fact, the severely deteriorated condition of the marble steps in question is clearly one that either took a considerable amount of time to develop or had existed 27 .Jl.rno{d' X. 1JiJoseyfl, T.C. for a considerable period of time before the accident. A period of several years would not be an overstatement. Again, the courts below sidestepped this proof by simply finding the only thing Plaintiff was complaining about was a nonactionable marble step. As for Plaintiff's Burden with Respect to Causation The courts below also ignored the principle that a Plaintiff "need not positively exclude every other possible cause of the accident ... A plaintiff need only prove that it was 'more likely' ... or 'more reasonable' ... that the alleged injury was caused by the defendant's negligence than by some other agency." (Gayle v. City ofNew York, 92 N.Y.2d 936, 680 N.Y.S.2d 900 [1998]). Also see, Tomaino v. 209 East 84th Street Corp., 72 A.D.3d 460, 900 N.Y.S.2d 245, (1st Dept., 2010). stated: 28 In Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, the Court of Appeals In order to prevail at trial in a negligence case, a plaintiff must establish by a preponderance of the evidence that the defendant's negligence was a proximate cause of plaintiffs injuries. A plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred (Schneider v. Kings Highway Hosp. Ctr., 67 NY2d 743, 744-745, 500 NYS2d 95, 490 NE2d 1221; Humphrey v. State of New York, 60 NY2d 742, 744, 469 NYS2d 661, 457 NE2d 767; Wragge v. Lizza Asphalt Constr. Co., 17 NY2d 313, 321, 270 NYS2d 616, 217 NE2d 666). Plaintiffs burden of proof on this issue is satisfied if the possibility of another explanation for the event is .Jtrno{dE. 'DiJoseyli, T.c. sufficiently remote or technical 'to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence' (Schneider v. Kings Highway Hosp. Ctr., supra, at 744, 500 NYS2d 95, 490 NE2d 1221; see also, Gayle v. City of New York, 92 NY2d 936). When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiffs burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiffs injuries. In Jacques v. Richal Enterprises, Inc., 300 AD2d 45, 751 NYS2d 726 (1st Dept. 2002), this Court explained: The lAS court granted defendant's motion, finding that plaintiffs affidavits were self-serving, and, in any event, did not provide sufficient evidence to charge defendant with constructive notice of the dirty water and ice on its floor. Because the lAS Court misconstrued defendant's burden as proponent of this motion for summary judgment, we reverse. *** ... defendant, as the proponent of the motion, has the burden of showing its 'entitlement to judgment as a matter of law.' ***' In focusing on the persuasiveness of the plaintiffs proof, the lAS Court engaged in 'issue-determination' rather than 'issue-finding' (Pirelli v. Long Is. R.R. Corp., 226 A.D.2d 166). Here, Plaintiffs testimony and affidavit that he slipped and fell on the worn, shaved, slippery top step of the subject stairway, when considered together with his expert's opinion regarding the worn, uneven and hazardous condition of the step 29 .A.rno{cf'E. DiJoseyli, P.c. and the compelling photographic evidence, raises a question of fact as to whether the fall was caused by the defective condition. Babich v. R.G.T. Restaurant Corp., 75 A.D.3d 439, 906 N.Y.S.2d 528, (1st Dept., 2010). In Babich, when faced with facts strikingly similar to the case at hand, the First Department itself held: Moreover, the injured plaintiffs testimony that she slipped on the top step of the subject stairway, coupled with her expert's testimony of the slippery condition of such steps due to worn-off treads, provided sufficient circumstantial evidence to raise an issue of fact as to whether her fa11 was caused by the allegedly defective condition (see Garcia v. New York City Tr. Auth., 269 A.D.2d 142, 703 N.Y.S.2d 4 [2000]; Gramm v. State of New York, 28 A.D.2d 787, 281 N.Y.S.2d 235 [1967], affd. 21 N.Y.2d 1025, 291 N.Y.S.2d 7, 238 N.E.2d 498 [1968]). The Accident Analysis and Professional Opinion of Plaintiff's Highly Qualified Engineering and Safety Expert Precluded Summary Judgment. The authorities are clear that when the non-movant submits an affidavit from a competent expert showing the existence of a triable issue of fact as to whether a defendant was negligent, a summary judgment motion must be denied. See, Cooper v. St. Vincent's Hosp., 290 A.D.2d 358 (1st Dept. 2002); Dellert v. Kramer, 280 A.D.2d 438 (1st Dept. 2001); Morrison v. Altman, 278 A.D.2d 135 (1st Dept. 2000); Avacato v. Mount Sinai Medical Center, 277 A.D.2d 32 (1st Dept. 2000); Hayley Zarzana v. Sheepshead Bay Obstetrics, 289 A.D.2d 570, 735 N.Y.S.2d 627 (2d Dept. 2001); Menzel v. Plonick, 202 A.D.2d 558, 610 N.Y.S.2d 50 (2d Dept. 30 ..Jtrno{c['E. 1Ji]oseyfi, 1].c. 1994); Wiands v. Albany Medical Center, 29 A.D.3d 982, 816 N.Y.S.2d 162 (2d Dept. 2006). There is no question that an expert need not visit an accident scene or even be familiar with the actual subject matter of the occurrence as long as any expert opinion is based on evidence such as depositions, photographs, reports, or other reliable information. Moreover, the basis for an expert's opinion need only be fairly inferable from the record. As long as an expert opinion meets these threshold requirements, any shortcoming it may otherwise have goes only to the weight of the evidence and not to its admissibility. (Tarlowe v. Metropolitan Ski Slopes, 28 N.Y.2d 410, 322 N.Y.S.2d 665 [1971]; People v. Moore, 155 A.D.2d 725, 547 N.Y.S.2d 685 [3d Dept. 1989]; Aetna Cas. & Sure. Co., 86 A.D.2d 362, 450 N.Y.S.2d 10 [1st Dept. 1982]; Rootlets v. Boston-Old Colony Ins. Co., 74 A.D.2d 821, 425 N.Y.S.2d 353 [2d Dept. 1980]). Here, the extremely detailed affidavit of Plaintiffs highly qualified engineering and safety expert, offered in opposition to the motion for summary judgment, was based on a personal examination of the steps as well as a careful examination and review of all of the available evidence in this case. In terms of expert opinions offered in support (or opposition) to a party's position in a pending litigation, New York courts are vigilant in monitoring the 31 JtrnoG£ T. 1Ji] osey/1, 'P.C. difference between admissibility and weight when it comes to such expert testimony. While a court may not like the opinions of a particular expert and even believe those opinions to be inferior in some way to those offered by an adverse expert retained by the opposing party, there is no justification whatsoever for "cherry picking" a version of an incident advocated by defense counsel and "plaintiffs' cause of action should not be lightly tossed off on a motion for summary judgment." (Winegrad v. New York University Medical Center, 104 A.D.2d 748, 480 N.Y.S.2d 472 [1st Dept. 1984]). When faced with a situation wherein the trial court chose to disregard plaintiffs expert in favor of those retained by the defendant, the First Department itself reversed the setting aside of a verdict in favor of plaintiff stating, in pertinent part: 32 "Plaintiffs expert witness, a licensed engineer, testified that the protrusion of the steps over the side rails amounted to improper design in that it would lead to excessive bending of the steps in that area. The fact that the truss bars were centered more to the rear of the steps than the center also would lead to the steps breaking at their weakest point, the front edges. Further, the cut-out comers on the front edges also constituted improper design as they made the front edges weaker. It was the expert's opinion that the ladder was defectively designed and unreasonably unsafe, and that alternative designs and .Jtrno{d'E. DiJoseyli, P.c. all the technology necessary for such safer designs were available when the ladder was manufactured. In the expert's opinion it was reasonably foreseeable that the front edge of a step could break, causing a person to fall off the ladder and in falling break other steps as well. Defendant presented five expert witnesses. These witnesses testified that the ladder met the applicable safety codes for ladders of that time and that while the 1952 code did not mention the use of a leading edge, the 1981 code sanctioned such use to the extent of three quarters of an inch. Some of these witnesses testified that the steps must have been broken prior to the accident. Two witnesses, ladder manufacturers, testified that their companies manufactured similar ladders and no claims had been made relating to broken leading edges. One expert witness for the defense stated that the leading edge was basically for cosmetic effect, not support, and that the front edges of steps do wear out more than the back edges. This witness also stated that many ladders today are made with shorter overhangs or none at all. From what is summarized herein of the trial evidence it is clear that this case presented a classic battle of the experts where the evidence was sharply contested as to the primary issue, defective and unsafe design in the overhang front edges of this ladder's steps. =:....:..;_;;::....:....=.::..:1.-.:= make the determination in this case that the jury's verdict was palpably incorrect and against the preponderance of the evidence, one would have to conclude that the testimony of plaintiff's expert was plainly unworthy of belief. There was nothing as implausible about that evidence as to require the jury not to give it credence. Accordingly, the finding of a defect was not plainly against the preponderance of the evidence." (Emphasis added.) (Loughman v. A.W. Flint Co., Inc., 132 A.D.2d 507, 518 N.Y.S.2d 389 [1st Dept. 1987], lv to appeal denied, 70 N.Y.2d 613, 524 N.Y.S.2d 432 [1987]). 33 .JlrnoGf 'E. Di]oseyli, P.c A court must always resist the temptation to substitute its v1ew of the evidence for that of a jury's and refrain from setting itself up as a "super jury" ready to disregard factual issues, resolve questions of fact on its own, or discredit expert opinions simply because the court believes itself to be in a superior position to weigh the opinion of an expert or the evidence in general. It certainly appears the courts below succumbed to that temptation as their opinions clearly indicate they engaged in issue determination based on the impermissible combination of Defendants' expert's suppositions as to what he believed occurred and improperly disregarding Plaintiffs expert's amply supported opinions. When lower courts in New York engage in such inappropriate speculation, the appellate courts have always stepped in to restore the rule of law. That was not done by the Appellate Division here. See, for example Brown v. City of New York, 63 A.D.2d 635, 405 N.Y.S.2d 253 (1st Dept. 1978), affirmed 47 N.Y.2d 927, 393 N.E.2d 486, 419 N.Y.S.2d 491 (1979): 34 "Judgment, Supreme Court, New York County, entered on April 4, 1977, setting aside a jury verdict for the plaintiff in the sum of $482,000 and dismissing the complaint, unanimously reversed, on the law and the facts, without costs or disbursements, the verdict reinstated as to liability ... Granting the plaintiff the most favorable view of the evidence as we must (Pave v. City ..Arno{d'E. 'DiJoseyli, P.c. of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960) we find that she has made out a prima facie case on the issue of liability and that in setting aside the verdict and dismissing the complaint the trial court impermissibly discredited her expert witness whose testimony must have been found credible by the jury ( cits. omitted)." In New York, as in all other state and federal jurisdictions, the divergent opinions offered by the various experts present "classic" factual questions that are indisputably for a jury alone to resolve. Dougherty v. Milliken, 163 N.Y. 527, 57 N.E. 757 (1900); Johnston v. Joyce, 192 A.D.2d 1124, 596 N.Y.S.2d 625 (4th Dept. 1993); Lillis v. D'Souza, 174 A.D.2d 976, 572 N.Y.S.2d 136 (4th Dept. 1991, lv denied, 78 N.Y.2d 858 (1991); Gary v. Country Club Acres, Inc., 47 A.D.2d 788, 366 N.Y.S.2d 57 (3d Dept. 1975); Gardner v. Dixie Parking Corp., 80 A.D.2d 577, 435 N.Y.S.2d 784 (2d Dept. 1981); Schecter v. State Ins. Fund, 6 N.Y.2d 506, 190 N.Y.S.2d 656 (1959); Zaepfel v. E.I. duPont de Nemours & Co., 284 App. Div. 693, 134 N.Y.S.2d 377 (3d Dept. 1954), affd, 309 N.Y. 962 (1956). As the court so aptly put it in Universal Waste, Inc. v. NYS Dept. of Environmental Conservation, 4 Misc.3d 500, 778 N.Y.S.2d 855 (N.Y. Sup. 2004): "A reason-based battle between experts is pathognomonic of an issue for a fact finder." Thus, the experts' credibility and which opinion to believe is solely within the province of the jury. 35 .Jtrno{c£T. DiJoseyli, P.c. Clearly, any motion for summary judgment in a case such as this would always be expected to contain the opinion of a qualified expert that agreed with the defense's position that defendant's side is the correct one. It would not make any sense for a defendant to retain an expert who did not provide precisely the opinions needed to support such a motion. That is exactly why a court must not simply accept those partisan opinions as Gospel, especially when the plaintiff opposes the motion on the basis of an opinion from a competent expert that is not inherently incredible or based on facts not contained in the record. It is for a jury alone to weigh the relative credibility and probative value of expert testimony. Once a court rules on its admissibility, the weight to be given to expert testimony is for the jury. When a court invades the province of the jury and chooses which expert to believe in order to steer clear of a resolution of a closely contested case on the merits, the result cannot be permitted to stand. Plaintiff submits that is exactly what makes the dismissal herein erroneous as a matter of law. Thus, rather than ending abruptly in a summary dismissal, the case at bar should have been permitted to proceed to trial before a jury so that the clear questions of fact presented by the evidence could be decided on the merits. 36 Arno{a T. DiJ oseyli, P.c. Clearly, Plaintiff presented anything but the typical barebones slippery marble case. Accordingly, the Appellate Division's clear mischaracterization of it as such was a misapprehension of the totality of the facts. The Appellate Division's Citation of Inapplicable Authorities was Clear Error Based on an indisputably restricted view of the evidence and certainly not one that was presented in a light most favorable to Plaintiff, the Appellate Division then supported its erroneous holding by citing two wholly inapplicable prior decisions it had rendered in the past year. In DiPini v. 381 E. 160 Equities LLC, 121 AD3d 465 (1st Dept. 2014) the First Department actually reversed an order granting summary judgment where the primary cause of the fall was a loose and defective railing. The issue of the marble being worm was really not part of the holding at all and constituted dicta, at best. In any event, that record presents no indication that the worn nature of the stairs was ever actionable. The defective railing alone lead this Court to find a triable issue of fact on the question of liability. Thus, DiPini had no applicability here, whatsoever, and the Appellate Division's use of that decision as controlling authority here was truly inappropriate and rather shocking. In Richards v. Kahn's Realty Corp., 114 AD3d 475 (1st Dept. 2014), it is indisputable that the First Department only considered the issue of whether smoothness alone amounted to an actionable defect and, quite understandably, 37 :Arno{cfT. 1JiJoseyli, T.c. found that it did not. Again, this "authority" is wholly inapplicable to the facts of this case and should never have (with DiPini) have been relied on to affirm the order appealed from. (Obviously, there were no authorities supporting the Appellate Division's determination here and, as a result, the First Department strained to reach its affirmance by simply misapplying two of its previous [inapplicable] decisions to justify a thoroughly unsupportable decision.) In cases where the condition has progressed beyond simple smoothness to one of foreseeable danger, the courts (even in the First Department) regard the issue of liability to then be one of fact for a jury and not one for summary disposition. Landahl v. City of Buffalo, 103 A.D.3d 1129 959 N.Y.S.2d 306 (4th Dept. 2013); Moore v. 793-797 Garden Street Housing Development Corp., 46 A.D.3d 382 847 N.Y.S.2d 574 (1st Dept. 2007); Wiener v. Board of Ed. of City of New York, 48 A.D.2d 887 369 N.Y.S.2d 207 (2d Dept.1975). Thus, under these specific circumstances, the Appellate Division clearly misapprehended the facts thereby leading to a misapplication of the legal authorities on the issue of liability in such cases Accordingly, the generally accepted principle that the mere smoothness of marble stairs or floors, or the reasonable wear thereof, does not constitute actionable negligence was improperly extended to situations where a plaintiff 38 .Jtrnoft£ :E. 'Di] oseyli, 1J.c. demonstrates the worn condition of the marble constitutes a hazard, danger or defect sufficient to present a question of fact to a jury on the issue of liability? There are certainly enough such cases statewide to justifY this Court revisiting the issue and articulating a consistent standard to be applied in such cases to avoid erratic and disparate results arising from summary judgment motions. Plaintiff Consents to a Determination Pursuant to Rule 500.11 Based on the foregoing, Plaintiff submit this appeal need not be heard in the normal course of full briefing and oral argument and the Court should proceed directly to decide the merits of the appeal pursuant to Rule 500.11. Plaintiff submits that based on the foregoing as well as the brief submitted by Plaintiff as Appellant in the Appellate Division, the Appellate Division order of June 9, 2015, should be reversed, the Defendants' motions for summary judgment denied and Plaintiff's Complaint reinstated. Respectfully submitted, Arnold E. DiJoseph, III Appellate Counsel for Plaintiff-Appellant 39 .Jtrno[ci'E. DiJoseyli, rp_c.