DeStefano v. Gutterman-Warheit Realty Corp.

237 A.D.2d 245, 655 N.Y.S.2d 392, 1997 N.Y. App. Div. LEXIS 2191

Opinion

In a negligence action to recover damages for personal injuries, etc., the defendants Gutterman-Warheit Realty Corp. and Gutterman’s, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Levitt, J.), entered March 6, 1996, as denied the motion of the defendant Gutterman’s, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the appeal by the defendant Gutterman-Warheit Realty Corp. is dismissed, as that defendant is not aggrieved by the order entered March 6, 1996; and it is further,

Ordered that the order is affirmed insofar as appealed from by the defendant Gutterman’s, Inc.; and it is further,

Ordered that the plaintiffs-respondents are awarded one bill of costs payable by the appellants. .

We agree that there are factual issues as to the origin of the ice patch which allegedly caused Peter DeStefano’s fall, and whether reasonable care was exercised in the maintenance of the premises in question (see, Fisher v Big V. Supermarkets, 221 AD2d 499; Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681-682; cf., Simmons v Metropolitan Life Ins. Co., 84 NY2d 972; Grillo v New York City Tr. Auth., 214 AD2d 648). Accordingly, the motion of the defendant Gutterman’s, Inc., was properly denied. O’Brien, J. P., Thompson, Joy and Florio, JJ., concur.