RUIZ v. HARYKEVICK REALTY CORPORATION

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

Ramon RUIZ, Plaintiff-Respondent, v. HARYKEVICK REALTY CORPORATION, et al., Defendants-Appellants.

Decided: October 27, 1998

Milonas, J.P., Ellerin, Wallach and Tom, JJ. James Gear, for Plaintiff-Respondent. Anthony Xanthakis, for Defendants-Appellants

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 15, 1997, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 In light of factual issues as to whether plaintiff was a tenant to whom defendant landlords owed a duty and whether it was breached by defendants' conduct, summary judgment was properly denied (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387).  Defendants' contention that plaintiff's act of climbing over the gate constituted an unforeseeable, reckless act that broke the causal chain and absolved defendants of liability is not preserved for review.   In any event, issues of fact as to the foreseeability of plaintiff's act exist on the face of the record.   Nor is there merit to defendant's preserved claim that plaintiff, in scaling the fence situated between him and his residence, assumed the risk entailed by an inherently dangerous activity.   Plaintiff's conduct is not to be equated with voluntary participation in dangerous activities such as sporting events (see, e.g., Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964).

MEMORANDUM DECISION.