Sacks v. Weiss

122 A.D.2d 937, 505 N.Y.S.2d 966, 1986 N.Y. App. Div. LEXIS 59432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 25, 1986
• Status: Published

Opinion

— In an action to recover

damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Monteleone, J.), dated September 11, 1985 which granted the motion of the defendant Vinyline Products, Inc. and the third-party defendant William Ossenforth’s cross motion for summary judgment, inter alia, dismissing the complaint insofar as it is asserted against them and severed the action against the defendants Weiss and Baumohl, and (2) an order of the same court dated October 10, 1985, which denied the plaintiffs motion for reargument and renewal, and granted the cross motion of the defendants Weiss and Baumohl for summary judgment dismissing the complaint insofar as it is asserted against them.

Order dated September 11, 1985 reversed, on the law, and motion and cross motion denied.

Appeal from so much of the order dated October 10, 1985 as denied the plaintiffs motion for renewal and reargument dismissed as academic, in light of our determination on the appeal from the order dated September 11, 1985.

Order dated October 10, 1985, otherwise reversed, on the law, and cross motion denied.

The plaintiff is awarded one bill of costs payable by the respondents and third-party defendant-respondent appearing separately and filing separate briefs.

Summary judgment is a drastic remedy which should not be granted lightly. If there is any doubt as to the existence of a triable issue of fact summary judgment must be denied (see, Rotuba Extruders v Ceppos, 46 NY2d 223; Coley v Michelin Tire Corp., 99 AD2d 795). Further, "issues of fact as to whether the defendant’s acts and omissions contributed substantially to the occurrence are properly questions to be determined by the trier of fact” (Johnson v New York City Hous. Auth., 114 AD2d 438, 439). In the instant action, the plaintiff tendered sufficient evidence to raise triable issues of fact as to whether the alleged inoperability or defective condition of the window lock facilitated the entry into her apartment of an intruder who proceeded to assault and rape her. Accordingly, summary judgment should not have been granted (cf. Olan v Farrell Lines, 64 NY2d 1092; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Environmental Concern v Larchwood Constr. Corp., 101 AD2d 591). The plaintiffs examination before trial, when read in its entirety, does not negate her claim as a matter of law (cf. Schneider v Kings Highway Hosp. Center, 67 NY2d 743).

Furthermore, under New York law a valid cause of action was stated against all the defendants (see, e.g., Miller v State of New York, 62 NY2d 506; Kush v City of Buffalo, 59 NY2d 26; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Bolm v Triumph Corp., 33 NY2d 151; Craft v Mid Is. Dept. Stores, 112 AD2d 969). Lawrence, J. P., Eiber, Kooper and Spatt, JJ., concur.