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

Justin BROOKS, Plaintiff-Appellant, v. Michael SAUM and Mary Jane Saum, Defendants-Respondents.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, LUNN, FAHEY, AND PERADOTTO, JJ. Alexander & Catalano, LLC, Syracuse (Peter Catalano of Counsel), for Plaintiff-Appellant. Bond, Schoeneck & King, PLLC, Syracuse (Richard L. Weber of Counsel), for Defendants-Respondents.

Plaintiff commenced this action seeking to recover damages for injuries he sustained when he tripped or slipped while diving into the above-ground pool owned by defendants, thereby causing him to lose his balance and alter his dive.   According to plaintiff, the accident resulted from a defect in the wooden decking adjacent to the pool.   Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint.   We conclude on the record before us that there is a triable issue of fact whether defendants were negligent in their maintenance of the premises (see generally Frazier v. Pioneer Cent. School Dist., 298 A.D.2d 875, 748 N.Y.S.2d 444;  Gentile v. University of Rochester Med. Ctr., 292 A.D.2d 874, 739 N.Y.S.2d 330).   Moreover, on the record before us, it cannot be determined as a matter of law that plaintiff's conduct in diving into the pool was an unforeseeable act of recklessness that broke the causal connection between defendants' alleged negligence and plaintiff's injuries and thus was the sole proximate cause of plaintiff's injuries (see Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 534-535, 569 N.Y.S.2d 337, 571 N.E.2d 645;  Ziecker v. Town of Orchard Park, 75 N.Y.2d 761, 763, 551 N.Y.S.2d 898, 551 N.E.2d 99;  Kriz v. Schum, 75 N.Y.2d 25, 36-37, 550 N.Y.S.2d 584, 549 N.E.2d 1155;  cf. Olsen v. Town of Richfield, 81 N.Y.2d 1024, 1026, 599 N.Y.S.2d 912, 616 N.E.2d 498;   Howard v. Poseidon Pools, 72 N.Y.2d 972, 974-975, 534 N.Y.S.2d 360, 530 N.E.2d 1280).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.