ORELLANA v. MEROLA ASSOCIATES INC

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

Gilbert ORELLANA, Plaintiff-Respondent, v. MEROLA ASSOCIATES, INC., et al., Defendants-Appellants.

Decided: October 30, 2001

NARDELLI, J.P., ANDRIAS, LERNER, SAXE and MARLOW, JJ. Heath T. Buzin, for Plaintiff-Respondent. Daniel A. Seymour, Michael J. Ross, for Defendants-Appellants.

Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered November 14, 2000, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a porter in an apartment building, alleges that he was injured when he tripped and fell on warped plywood covering newly cemented steps that were being installed by defendants contractors.   Viewing the evidence in the light most favorable to plaintiff (see, Rockefeller Univ. v. Tishman Constr. Corp., 240 A.D.2d 341, 342, 659 N.Y.S.2d 460, lv. denied 91 N.Y.2d 803, 668 N.Y.S.2d 558, 691 N.E.2d 630), including his deposition testimony concerning the configuration of the staircase around a turn, we reject defendants' argument that they are entitled to summary judgment on the ground that no issue of fact exists as to whether the allegedly dangerous condition was open and obvious.   We note that it does not necessarily flow from plaintiff's testimony that he was either distracted or looking elsewhere, or that he had seen the plywood plank covering the step (see, Walters v. County of Rensselaer, 282 A.D.2d 944, 945, 724 N.Y.S.2d 97).   Issues concerning these defenses are not susceptible to summary relief and may be decided by a trier of the facts.   In any event, even if the dangerous condition were readily observable, such fact would go to the issue of comparative negligence and would not negate defendants' duty to keep the premises reasonably safe (see, Tuttle v. Anne LeConey, Inc., 258 A.D.2d 334, 335, 685 N.Y.S.2d 204;  Reisch v. Amadori Constr. Co., 273 A.D.2d 855, 857, 709 N.Y.S.2d 726).