ETTARI v. 30 RAMPASTURE OWNERS INC

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

Gerald ETTARI, respondent, v. 30 RAMPASTURE OWNERS, INC., et al., appellants.

Decided: February 28, 2005

GABRIEL M. KRAUSMAN, J.P., WILLIAM F. MASTRO, REINALDO E. RIVERA, and PETER B. SKELOS, JJ. Robert P. Pagano, Pearl River, N.Y., for appellants. Ira Bierman, Syosset, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Seidell, J.H.O.), dated July 16, 2003, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The fact that the ice and snow in the driveway area where the plaintiff allegedly fell was open and obvious does not preclude a finding of liability, but rather raises a triable issue of fact regarding comparative negligence (see Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40;  Luksch v. Blum-Rohl Fishing Corp., 3 A.D.3d 475, 771 N.Y.S.2d 136;  Kraeling v. Leading Edge Elec., 2 A.D.3d 789, 770 N.Y.S.2d 382;  Grgich v. City of New York, 2 A.D.3d 680, 770 N.Y.S.2d 91;  Moloney v. Wal-Mart Stores, 2 A.D.3d 508, 767 N.Y.S.2d 897;  Massucci v. Amoco Oil Co., 292 A.D.2d 351, 738 N.Y.S.2d 386).

 Further, the mere fact that the plaintiff may have fallen in an ice and snow-covered area adjacent to the driveway, which also allegedly was under the defendants' control, rather than on the uncleared driveway itself, is not sufficient to relieve the defendants of liability (see Rosenbloom v. City of New York, 254 A.D.2d 474, 680 N.Y.S.2d 262;  Malley v. Alice Hyde Hosp. Assn., 297 A.D.2d 425, 746 N.Y.S.2d 102).

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