Opinion
Submitted May 17, 2001.
July 2, 2001.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Belen, J.), dated September 15, 2000, which granted the defendants' motion for summary judgment dismissing the complaint.
Louis Fiabane, New York, N.Y., for appellant.
Rivkin, Radler Kremer, LLP, Uniondale, N.Y. (Evan H. Krinick and Merril S. Biscone of counsel), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The plaintiff was seated in the audience of the Maury Povich Show when her chair slipped off a platform, causing her to fall into the aisle. She commenced this action against the Maury Povich Show and its producer, Studios USA Talk Television, LLC (hereinafter collectively the defendants).
The defendants moved for summary judgment more than 90 days after the note of issue was filed, in violation of the Supreme Court's requirement that such motions be made within 60 days of filing of the note of issue (see, CPLR 3212[a]). The Supreme Court has wide latitude in determining whether to consider an untimely summary judgment motion (see, Olzaski v. Locust Val. Cent. School Dist., 256 A.D.2d 320). In view of the short delay and the absence of prejudice to the plaintiff, the Supreme Court providently exercised its discretion in entertaining the defendants' motion (see, Maravalli v. Home Depot U.S.A., 266 A.D.2d 437; Rossi v. Arnot Ogden Med. Ctr., 252 A.D.2d 778).
However, the Supreme Court erred in granting the motion for summary judgment dismissing the complaint. The defendants failed to establish as a matter of law that they did not create an unsafe condition by positioning the plaintiff's chair too close to the edge of the platform. Under the circumstances of this case, the defendants' contention that the allegedly unsafe condition was open and obvious presents an issue of fact concerning the plaintiff's comparative fault and does not relieve them of liability (see, Smith v. Zink, 274 A.D.2d 885; Tuttle v. Anne LeConey, Inc., 258 A.D.2d 334).
O'BRIEN, J.P., FLORIO, FEUERSTEIN and SMITH, JJ., concur.