House v. Green

205 A.D.2d 829, 615 N.Y.S.2d 297, 1994 N.Y. App. Div. LEXIS 5819

Opinion

Appeal from an order of the Supreme Court (Coutant, J.), entered May 3, 1993 in Broome County, which, upon reconsideration, granted plaintiffs motion to set aside the prior order of the court granting summary judgment to defendant.

This lawsuit concerns injuries sustained by plaintiff when she allegedly fell on the top step or landing of a home that had been owned by decedent, James A. Finnigan, and occupied at the time by two of decedent’s daughters. Plaintiff commenced suit against defendant, who is the executrix of decedent’s estate. Although Supreme Court originally granted a motion for summary judgment brought by defendant, upon reconsideration the court vacated this order, finding a question of fact as to, inter alia, the issue of notice of an allegedly defective condition. We agree with this ruling. We also find no error with Supreme Court’s determination that defendant’s failure to raise the affirmative defense of absence of possession and control of the premises constituted a waiver of that issue. Finally, we conclude that Supreme Court did not abuse its discretion in granting plaintiffs motion for reconsideration.

Cardona, P. J., Mikoll, White, Weiss and Peters, JJ., concur. Ordered that the order is affirmed, with costs.