Opinion
234
February 14, 2002.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered January 23, 2001, which granted defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny the motion as to that part of the complaint seeking recovery upon the theory that defendant created the complained of hazard, and otherwise affirmed, without costs.
ALAN C. KESTENBAUM, for plaintiffs-appellants.
BRENDAN T. FITZPATRICK, for defendant-respondent.
Before: Sullivan, J.P., Rosenberger, Rubin, Friedman, Marlow, JJ.
Defendant's motion for summary judgment dismissing the complaint should have been denied to the extent that plaintiff seeks to recover on the theory that defendant created the complained of hazard, since the record contains conflicting testimonial and documentary evidence giving rise to a triable issue as to whether the alleged hazard was in fact created by defendant (see, Gaillard v. Olympia York Rand Co., 289 A.D.2d 181, 2001 N.Y. App. Div. LEXIS 12837). We have considered plaintiffs' other contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.