Hotzoglou v. Hotzoglou

221 A.D.2d 594, 634 N.Y.S.2d 501, 1995 N.Y. App. Div. LEXIS 12440

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1995
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Vinik, J.), dated July 6, 1994, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff slipped and fell, sustaining physical injuries, while descending an exterior staircase at the defendants’ home. Contrary to the defendants’ contention, issues of fact exist which preclude an award of summary judgment. There is evidence in the record that the defendants were aware that the staircase was in a dilapidated condition and that it became slippery in the rain. Moreover, the defendants acknowledged that the exterior staircase did not have a handrail, and they did not establish, as a matter of law, that their home is exempt from the applicable building ordinances that require one (see, Orlick v Granit Hotel & Country Club, 30 NY2d 246; Major v Waverly & Ogden, 7 NY2d 332; Edlitz v Village of Dobbs Ferry, 97 AD2d 747; Lattimore v Falcone, 35 AD2d 1069). Indeed, "[e]ven if the fall was precipitated by a misstep, 'if a hand-rail had been furnished, the [plaintiff! might have held on to it as [s]he descended the stairs, and could have avoided falling. Therefore, the absence of the rail, if required by law, would seem to be a proximate cause of the accident’ ” (Lattimore v Falcone, supra, at 1069). Since summary judgment should not be awarded when, as here, there are genuine issues of material fact (see, Museums at Stony Brook v Village of Patchogue Fire Dept, 146 AD2d 572), the Supreme Court correctly denied the defendants’ motion. Bracken, J. P., Sullivan, Miller and Florio, JJ., concur.