DELL v. TURNER CONSTRUCTION COMPANY

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

Shawn DELL, et al., Plaintiffs, v. TURNER CONSTRUCTION COMPANY, et al., Defendants.

The Port Authority of New York and New Jersey, Third-Party Plaintiff-Respondent, v. John P. Moroney, et al., Third-Party Defendants-Appellants.

Decided: November 26, 2002

MAZZARELLI, J.P., ROSENBERGER, RUBIN and GONZALEZ, JJ. Richard E. Lerner, for Third-Party Plaintiff-Respondent. Robert I. Lapidow, for Third-Party Defendants-Appellants.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered June 13, 2002, which, to the extent appealed from, denied third-party defendants' motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

Summary judgment dismissing the third-party complaint was properly denied in view of triable issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718) as to whether plaintiff's injury was in some measure attributable to the condition of the stairs in the third-party defendants' home.   The affidavit of third-party plaintiff's expert raises a triable issue as to whether there was a defective riser in third-party defendants' staircase that caused plaintiff to fall down the staircase.   While third-party defendants question the credibility of third-party plaintiff's expert, such credibility issues are properly reserved for the trier of fact (see Alvarez v. New York City Hous. Auth., 295 A.D.2d 225, 744 N.Y.S.2d 25).