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MICHELLE CASHION, PLAINTIFF–RESPONDENT, v. ALEXANDER T. BAJOREK AND JUDITH BAJOREK, DEFENDANTS–APPELLANTS.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she slipped and fell from outdoor steps at the home she rented from defendants. Supreme Court denied defendants' motion for summary judgment dismissing the complaint. We affirm.
Contrary to defendants' contentions, we conclude that there are several triable issues of fact precluding summary judgment. First, there is an issue of fact whether they maintained the premises at issue in a reasonably safe condition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562). We note that the allegedly open and obvious condition of the steps does not absolve defendants of their duty to keep the stairs in a safe condition but, instead, bears only on plaintiff's comparative fault (see Landahl v. City of Buffalo, 103 AD3d 1129, 1131; Verel v Ferguson Elec. Constr. Co., Inc., 41 AD3d 1154, 1156). Second, there is an issue of fact whether any breach of that duty “was a substantial cause of the events which produced the injury” (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314–315, rearg. denied 52 N.Y.2d 784; see Hahn v. Tops Mkts., LLC, 94 AD3d 1546, 1548; Prystajko v Western N.Y. Pub. Broadcasting Assn., 57 AD3d 1401, 1403). Finally, there are issues of fact whether defendants created the allegedly dangerous condition (cf. Navetta v. Onondaga Galleries LLC, 106 AD3d 1468, 1469; see generally Ohanessian v Chase Manhattan Realty Leasing Corp., 193 A.D.2d 567, 567), and whether defendants had constructive notice of that condition (see generally Zuckerman, 49 N.Y.2d at 562; Wilson v. 100 Carlson Park, LLC, 113 AD3d 1118, 1119).
Frances E. Cafarell
Clerk of the Court
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Docket No: CA 14–01391
Decided: March 20, 2015
Court: Supreme Court, Appellate Division, Fourth Department.
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