KEANE v. [And a Third-Party Action]. (2003)

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about August 30, 2002, which, inter alia, denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion for summary judgment dismissing the complaint as against defendants-appellants was properly denied since the record discloses the existence of factual issues as to whether defendants-appellants, the lessees of the commercial premises which plaintiff was in the course of leaving when she allegedly slipped and fractured her ankle on a defective granite step, occupied, controlled and/or made special use of the steps upon which the accident is alleged to have occurred (see Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 296, 532 N.Y.S.2d 105, lv. dismissed in part and denied in part 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671).   The factual issues raised by the vague and conflicting evidence submitted on defendant lessees' motion include questions as to the extent of their commercial leasehold and whether it included the building's front entrance steps;  the extent to which they assumed control over the steps by undertaking in their lease to maintain, but not structurally repair, them;  and whether they made special use of the sidewalk area by reason of the circumstance that the stairs providing access to their store extend out from the building and into the area of the sidewalk (see e.g. Granville v. City of New York, 211 A.D.2d 195, 627 N.Y.S.2d 4).

We have considered defendants-appellants' remaining arguments and find them unavailing.