KOINOGLOU v. LONG ISLAND RAIL ROAD CO (1999)

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

Nancy KOINOGLOU, et al., appellants, v. LONG ISLAND RAIL ROAD CO., et al., respondents.

Decided: June 21, 1999

SONDRA MILLER, J.P., GLORIA GOLDSTEIN, HOWARD MILLER and NANCY E. SMITH, JJ.

Jeffrey B. Hulse, Islandia, N.Y., for appellants. Chesney, Murphy & Moran, Baldwin, N.Y. (Eugene C. Buccellato of counsel), for respondent Long Island Rail Road Co. Patrick F. Adams, P.C., Bay Shore, N.Y. (Vito A. Cardo III, Charles J. Adams, and Daniel C. Adams of counsel), for respondent Town of Smithtown.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated May 11, 1998, as denied their motion for partial summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

Contrary to the plaintiffs' contention, whether the 10-foot long depression in the pavement was open and obvious is a question of fact precluding summary judgment (see, McGraw v. Ranieri, 202 A.D.2d 725, 608 N.Y.S.2d 577).

MEMORANDUM BY THE COURT.

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