dissent in a memorandum by Catterson, J., as follows: It is undisputed that the proprietary lease between the parties places responsibility on defendants for the maintenance and repair of the plumbing fixtures contained within the walls of the premises. Section 5.02 (d) of the lease provides, inter alia, that the tenant is not responsible for repairing or maintaining the “gas, steam, water or other pipes or conduits within the walls, ceiling or floors, or air conditioning or heating equipment which is part of the standard building equipment.”
The building manager employed by defendant Clinton Housing Development Company testified that defendant HFDC was responsible for the condition of any of the plumbing located within the walls of the premises. Furthermore, the manager testified that if a pipe broke within a wall, “we would call a *309plumber, if it’s outside the wall, the shareholder [tenant].” The manager reiterated that even if the problem was “a valve at the riser” connecting to the main water supply in the building, “[i]f it’s in the wall I would get a plumber . . . .”
The majority appears to substitute its collective view of the photographic evidence submitted below as superseding the only expert testimony submitted on the summary judgment motions to find the valve in issue outside the wall. Plaintiff submitted the affidavit of a licensed master plumber who inspected the actual fixtures involved in the accident as well as the repaired plumbing in plaintiff’s apartment. The expert affirmed that, based upon his observations, the valve in question was located inside the wall itself. This fact is singularly uncontroverted. Regardless of what the valve body may look like to the untrained eye, the undisputed expert testimony contained in the plaintiff’s motion for summary judgment is that the valve body was located inside the wall. The mere fact that the valve stem protruded through the wall does not change the valve body’s location and defendants’ duty under section 5.02 (d) of the proprietary lease. The majority, in direct contravention of the expert’s unrebutted testimony, appears to hold that the solid brass valve stem was the source of the hot water which scalded plaintiff. There is simply no evidence to support this view that scalding water could somehow transit a solid brass valve stem and injure plaintiff. The artifice of deus ex machina to bring about a desired outcome, while appropriate in a dramatic context, has no place in the disposition of a summary judgment motion, particularly when there is uncontroverted expert testimony dictating a different result. Therefore, I believe defendants’ motion for summary judgment should be denied.
In this case, the issue of the defendants’ negligence as the sole factor in plaintiffs injuries cannot be resolved on motion. It is for the jury to determine what responsibility plaintiff bears, if any, for her own injuries, in unscrewing the valve stem from the valve body. Therefore, I would deny plaintiffs motion as well.