TIRIRO v. WESTLAND SOUTH SHORE MALL LP (2002)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Kitson, J.), entered October 11, 2001, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff brought this action to recover damages for personal injuries she allegedly sustained when she tripped and fell over part of a platform supporting children's rides in a shopping mall.   Contrary to the defendants' contentions, the Supreme Court properly denied their motion for summary judgment dismissing the complaint.   The plaintiff sufficiently rebutted the defendants' prima facie showing of entitlement to summary judgment when she presented evidence that at the time of the alleged accident the mall was so crowded that the hazard complained of was not apparent.   Accordingly, there is a triable issue of fact as to whether or not the hazardous condition complained of was open and obvious (see, Chafoulias v. 240 E. 55th St. Tenants Corp., 141 A.D.2d 207, 533 N.Y.S.2d 440).

The defendants' remaining contentions are without merit.