Opinion
2003-05688.
Decided April 26, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Cohalan, J.), entered June 3, 2003, which, upon an order of the same court dated April 10, 2003, granting the defendant's motion for summary judgment dismissing the complaint, dismissed the complaint.
Kelly, Sackman, Spollen Upton, Greenlawn, N.Y. (William J. Upton of counsel), for appellants.
Hammill, O'Brien, Croutier, Dempsey Pender, P.C., Smithtown, N.Y. (James D. Bruckner of counsel), for respondent.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, with costs, the order dated April 10, 2003, is vacated, the motion is denied, and the complaint is reinstated.
The infant plaintiff was injured when she tripped and fell over a crack in the pavement of a parking lot owned by the defendant. The Supreme Court granted the defendant's motion for summary judgment, concluding that the subject defect did not constitute a dangerous condition because it was open and obvious, and that the sole cause of the accident was the infant plaintiff's failure to watch where she was going. However, the fact that the subject defect was open and obvious does not negate the defendant's duty to maintain its premises in a reasonably safe condition, but rather raises an issue of fact concerning the infant plaintiff's comparative negligence ( see Cupo v. Karfunkel, 1 A.D.3d 48, 52; Tulovic v. Chase Manhattan Bank, 309 A.D.2d 923). Furthermore, the evidence presented an issue of fact as to whether the defendants fulfilled their obligation to maintain the parking lot in a reasonably safe condition ( see Cupo v. Karfunkel, supra at 53; Grgich v. City of New York, 2 A.D.3d 680). Accordingly, the Supreme Court improperly granted the defendant's motion for summary judgment dismissing the complaint ( see Cupo v. Karfunkel, supra; see also DiVietro v. Gould Palisades Corp., 4 A.D.3d 324; Grgich v. City of New York, supra; DeGruccio v. 863 Jericho Turnpike Corp., 1 A.D.3d 472).
RITTER, J.P., KRAUSMAN, LUCIANO and COZIER, JJ., concur.