Rivera v. 4064 Realty Co.

270 A.D.2d 189, 706 N.Y.S.2d 623, 2000 N.Y. App. Div. LEXIS 3264

Opinion

—Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about March 2, 1999, which, to the extent appealed from, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs cross motion for summary judgment on the issue of liability, unanimously modified, on the law, to deny defendant’s motion for summary judgment and reinstate the complaint, and otherwise affirmed, without costs.

The motion court erred in granting summary relief to defendant, since the evidence demonstrated that triable factual issues existed as to whether defendant negligently installed a window guard in the apartment in which the infant plaintiff resided and as to whether any such negligence was a proximate cause of the infant plaintiffs harm (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522). Plaintiffs’ cross motion for summary judgment on liability was, however, properly denied given the conflicting evidence presented by the parties. Concur — Nardelli, J. P., Mazzarelli, Lerner and Friedman, JJ.