GORDON v. MONTOYA (2005)

Supreme Court, Appellate Division, Second Department, New York.

Josephine E. GORDON, respondent, v. Guillermo MONTOYA, et al., appellants.

Decided: December 12, 2005

DAVID S. RITTER, J.P., REINALDO E. RIVERA, ROBERT A. SPOLZINO, and JOSEPH COVELLO, JJ.

Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for appellants. Joseph B. Fruchter, Hauppauge, N.Y. (Amy Secter of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Berler, J.), dated June 22, 2005, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell while descending exterior steps at the defendants' residence which were allegedly both inadequately lighted and contained height differentials in the risers. The defendants moved for summary judgment dismissing the complaint.

On the record presented, the alleged condition at best “merely negated a duty to warn and raised triable issues of fact as to comparative fault” (see Vinci v. Vasaturo, 8 A.D.3d 262, 263, 777 N.Y.S.2d 677; see also Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment.

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