Orellana v. Merola Associates, Inc.

287 A.D.2d 412, 731 N.Y.S.2d 726, 2001 N.Y. App. Div. LEXIS 10093

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 2001
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered November 14, 2000, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a porter in an apartment building, alleges that he was injured when he tripped and fell on warped plywood covering newly cemented steps that were being installed by defendant contractors. Viewing the evidence in the light most favorable to plaintiff (see, Rockefeller Univ. v Tishman Constr. Corp., 240 AD2d 341, 342, lv denied 91 NY2d 803), including his deposition testimony concerning the configuration of the staircase around a turn, we reject defendants’ argument that they are entitled to summary judgment on the ground that no issue of fact exists as to whether the allegedly dangerous condition was open and obvious. We note that it does not necessarily flow from plaintiffs testimony that he was either distracted or looking elsewhere, or that he had seen the plywood plank covering the step (see, Walters v County of Rensselaer, 282 AD2d 944, 945). Issues concerning these defenses are not susceptible to summary relief and may be decided by a trier of the facts. In any event, even if the dangerous condition were readily observable, such fact would go to the issue of comparative negligence and would not negate defendants’ duty to keep the premises reasonably safe (see, Tuttle v Anne LeConey, Inc., 258 AD2d 334, 335; Reisch v Amadori Constr. Co., 273 AD2d 855, 857). Concur — Nardelli, J. P., Andrias, Lerner, Saxe and Marlow, JJ.