                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 14, 2016                      522221
________________________________

MONTASSER M. ELSAWI et al.,
   Individually and as Parents
   and Guardians of ANISA
   MONTASSER ELSAWI, an Infant,
                    Respondents,
      v                                      MEMORANDUM AND ORDER

SARATOGA SPRINGS CITY SCHOOL
   DISTRICT,
                    Appellant.
________________________________


Calendar Date:   June 3, 2016

Before:    Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

                              __________


      The Mills Law Firm, Clifton Park (Christopher K. Mills of
counsel), for appellant.

      Powers & Santola, LLP, Albany (Michael J. Hutter of
counsel), for respondents.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Crowell, J.),
entered June 30, 2015 in Saratoga County, which, among other
things, denied defendant's motion for summary judgment dismissing
the complaint.

      In May 2011, Anisa Montasser Elsawi was rehearsing with her
classmates for a choral concert at defendant's Maple Avenue
Middle School when a stage riser collapsed as she walked across
it, causing her to fall and suffer injuries. Plaintiffs, who are
Elsawi's parents, commenced this action against defendant
                              -2-                522221

alleging negligence and asserting a derivative claim. Following
joinder of issue and discovery, defendant moved for summary
judgment dismissing the complaint and plaintiffs cross-moved for
summary judgment on the issue of liability. Supreme Court denied
both motions and ruled that plaintiffs were entitled to a jury
charge on the doctrine of res ipsa loquitur. Defendant now
appeals.

      Plaintiffs do not dispute that defendant met its initial
burden of demonstrating that it "maintained the [riser] in a
reasonably safe condition and neither created nor had actual or
constructive notice of the allegedly dangerous condition"
(McGrath v George Weston Bakeries, Inc., 117 AD3d 1303, 1304
[2014]; accord Riozzi v 30 Kingston Realty Corp., 112 AD3d 1033,
1033 [2013]). In support of defendant's motion, the head
custodian at Maple Avenue Middle School and defendant's expert, a
licensed engineer who examined the riser in December 2012,
averred that the riser was well maintained, had no obvious
defects and was properly assembled and inspected by defendant's
custodial staff prior to the incident in question.

      In response, plaintiffs submitted their own expert
affidavit from a licensed engineer who, in August 2014, examined
the riser and supplemented his observations with photographic
exhibits. Upon examining the area around the point at which the
upper and lower portions of the riser's support braces lock
together via a spring-loaded pin, plaintiffs' expert observed
tool marks and a brace bar bent outward in a manner inconsistent
with normal wear. He further stated that neither of the upper
brace bars laid flush against the walls of the lower portion of
the brace – a steel "C channel" – which was itself bent and
"flared" open. Based upon his observations, plaintiffs' expert
opined to a reasonable degree of engineering certainty that, when
Elsawi walked across the riser, the bent upper brace bar and
"flared" condition of the lower C channel caused the brace
locking mechanism to disengage and the riser to collapse, and the
tool marks near that area were indicative of a failed attempt to
fix the problem. He further opined that these defects in the
riser braces were "easily observable," and their existence led
him to believe that the risers were not properly maintained or
inspected before they were used.
                              -3-                522221

      In light of the foregoing, we cannot agree with defendant's
argument that the affidavit of plaintiffs' expert is conclusory,
unsupported or legally insufficient to defeat its motion for
summary judgment. While plaintiffs' expert did not examine the
riser until three years after the incident, there is no evidence
in the record indicating that its condition had deteriorated
between the date of the incident and the date of his examination,
and "we do not find [his] opinion . . . to be so lacking in
factual or scientific foundation as to be utterly devoid of
merit" (Hyatt v Price Chopper Operating Co., Inc., 90 AD3d 1218,
1220 [2011]). While the shortcomings that defendant perceives
may well affect the weight to be accorded to the expert's opinion
at trial, his affidavit is legally sufficient to raise triable
issues of fact at this stage (see Lopez-Viola v Duell, 100 AD3d
1239, 1242 [2012]; Hyatt v Price Chopper Operating Co., Inc., 90
AD3d at 1220). Accordingly, viewing the evidence in a light most
favorable to plaintiffs, we find that Supreme Court properly
denied defendant's motion for summary judgment dismissing the
complaint.

      We also agree with Supreme Court's determination that
plaintiffs raised questions of fact regarding a res ipsa loquitur
theory of negligence (see Morejon v Rais Constr. Co., 7 NY3d 203,
209 [2006]; Brumberg v Cipriani USA, Inc., 110 AD3d 1198, 1200
[2013]). Contrary to defendant's contention, plaintiffs'
allegations of specific acts of negligence do not preclude them
from alternatively relying on a res ipsa theory (see Abbott v
Page Airways, 23 NY2d 502, 512-513 [1969]; see Rossetti v Board
of Educ. of Schalmont Cent. School Dist., 277 AD2d 668, 671
[2000]). However, the court's ruling that a jury charge would be
given was premature, as proof related to the applicability of the
doctrine has yet to be adduced at trial (see Weeks v St. Peter's
Hosp., 128 AD3d 1159, 1161-1162 [2015]).

     Peters, P.J., Lahtinen, Egan Jr. and Clark, JJ., concur.
                              -4-                  522221

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as ordered that plaintiffs
are entitled to a jury charge on the doctrine of res ipsa
loquitur, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
