Upon the foregoing papers, defendants' motion for summary judgment is granted to the extent that the complaint of plaintiff Lisa Sepe is hereby severed and dismissed as to each defendant; the balance of the motion is denied.

This matter arises out of an accident which occurred on December 21, 2004, on the second floor "down" escalator at the Toys "R" Us store located at 1 DeKalb Avenue, Brooklyn, New York. Plaintiff, Francis Sepe, (hereinafter "plaintiff"), claims to have sustained extensive personal injuries as a result of an alleged malfunction of this particular escalator. At his October 20, 2006 deposition (Defendants' Exhibit H), plaintiff testified that the escalator "stopped short or jerked" and then "started again" (p 31, ls 6-16) causing him to fall. Specifically, plaintiff explained: "When the escalator came to its stop momentarily, it jarred me from the step and I fell off the step, twisting my ankle going down to the next step..." (p 30, ls 17-21).

In moving for summary judgment, defendants maintain, inter alia, that plaintiffs cannot establish actual or constructive notice relative to the defective escalator, and moreover that plaintiffs' attempt to recover under the doctrine of res ipsa loquitur is futile since the escalator was not in defendants' exclusive control. In support of their position defendants attach, inter alia, the March 20, 2007 affidavit of an engineer, Jon B. Halpern, (Defendants' Exhibit Q), who opines that it would be impossible for the escalator to act in the manner described by plaintiff, inasmuch as it cannot stop and restart unless restarted manually. Additionally, defendants attach the March 22, 2007 affidavit of Toys "R" Us store manager, Joseph Baglivio (Defendants' Exhibit O), who essentially denies that an accident occurred. Contrary to plaintiff's version, it is claimed by this witness that his search for documents uncovered no accident report on behalf of Francis Sepe, nor the record of any complaint relative to the subject escalator.

In opposing the motion, plaintiffs place principal reliance on the affidavit of their engineering expert, Patrick A. Carrajat (Plaintiffs' Exhibit E), who points to an utter lack of [*2]maintenance as the source of a "handrail stall" that may have caused the subject accident^[FN1] (Id., para g). Plaintiffs also urge that an issue of constructive notice has been raised through their expert's interpretation of the numerous repair records produced relative to the subject escalator (Plaintiffs' Exhibits E & I). In any event, plaintiffs argue that they are entitled to proceed under the doctrine of res ipsa loquitur since all of the elements of that doctrine have been satisfied.

In the absence of any opposition to that portion of defendants' motion which is to dismiss the complaint of co-plaintiff Lisa Sepe, the motion is granted to that extent. In all other respects, defendants' summary judgment motion is denied.

It has been explained that the doctrine of res ipsa loquitur permits an inference of negligence to be drawn from the very occurrence of certain types of accidents and a defendant's relation to it. If the requirements for application of the doctrine are met, a plaintiff is allowed to rest his or her case on circumstantial evidence where the cause of the accident remains unknown (Pavon v. Rudin, 254 AD2d 143, 145). Thus, in order to demonstrate the existence of a triable issue under res ipsa loquitur, a plaintiff need only establish that (1) the accident is of a kind that ordinarily does not occur in the absence of someone's negligence, (2) the instrumentality causing the accident was within defendant's exclusive control, and (3) the accident was not due to any voluntary action or contribution by the plaintiff (Kambat v. St. Francis Hosp.,89 NY2d 489, 494).

While the first and third elements appear to be satisfied in this case, the demonstration of exclusive control over the instrumentality that caused the accident is rendered problematic due to the significant volume of traffic to which this escalator was regularly exposed. In fact, both experts noted that pennies found under the "combs" had activated safety switches and stopped the escalator on the day prior to plaintiff's accident. As a result, plaintiff cannot rely on res ipsa loquitur to raise a triable issue of fact.

Nevertheless, the motion for summary judgment motion must be denied. It is axiomatic that on a motion for summary judgment, the function of the court is issue-finding, and not issue-determination (Weiner v. Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (Glennon v. Mayo, 148 AD2d 580), and the motion denied if there is evidence of any material issue of fact (CPLR 3212[b]). Thus, the drastic remedy of summary judgment is only appropriate where a thorough examination of the papers demonstrates the absence of any triable issues. Summary judgment should not be granted where there is any doubt as to the existence of a triable issue, or where doubt as to the existence of such an issue is even arguable (see Fleming v. Grahm, 34 AD3d 525; American Home Assur Co., v. Amerford Intl Corp., 200 AD2d 472). Moreover, "[I]t is well established that conflicting expert opinions may not be resolved on a motion for summary judgment" (Corbett v. County of Onondaga, 291 AD2d 886, 887, quoting Williams v. Luciantelli, 259 AD2d 1003, 1003 [internal quotation marks omitted]).

Here, the opinions expressed in the affidavit of plaintiffs' engineering expert regarding, e.g., the repair and maintenance records of the instant escalator are sufficient to raise a triable [*3]issue of fact as to defendants' knowledge of its alleged dangerous or defective condition. In this context, defendants' alleged inability to locate plaintiff's purported accident report does not mandate a contrary result.

Accordingly, it is

ORDERED, that defendants' motion for summary judgment is granted, without opposition, as to the complaint of plaintiff, Lisa Sepe; and it is further

ORDERED, that the causes of action asserted on behalf of said plaintiff are severed and dismissed; and it is further

ORDERED, that the balance of defendants' motion is denied; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,

Dated:October 4, 2007S/ Philip G. Minardo

J. S. C.