Kleiner v. Town of Babylon

133 A.D.2d 612, 519 N.Y.S.2d 719, 1987 N.Y. App. Div. LEXIS 51649

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1987
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated July 23, 1986, as granted the cross motion of the defendant Oak Beach Inn for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is reversed insofar as appealed from, with costs, and the respondent’s cross motion for summary judgment is denied.

The plaintiff Esther Kleiner sustained serious injuries when her foot became caught in a crack in a cement walkway causing her to fall down four steps onto a cement landing leased by the defendant Oak Beach Inn. A search of the record indicates that there are triable issues of fact with respect to the existence of a duty running from the respondent to the plaintiffs including whether the respondent had the right under the lease and perforce, the control to make the walkway safe by repairing the cracked cement, whether or not the respondent was effectively precluded from exercising the control necessary to comply with the lease provision requiring it to "maintain the leased premises in a safe * * * condition”, and whether the alterations and repairs by respondent to the walkway were carried out in a reasonable manner (see, Putnam, v Stout, 38 NY2d 607, 616).

Accordingly, the cross motion of the defendant Oak Beach Inn for summary judgment dismissing the complaint insofar as it is asserted against it should be denied. Weinstein, J. P., Rubin, Kunzeman and Kooper, JJ., concur.