Opinion
2002-05598
Argued November 26, 2002.
October 27, 2003.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated May 1, 2002, as, upon granting the plaintiff's motion for leave to reargue their motion for summary judgment dismissing the complaint, which had previously been determined by order dated January 15, 2002, denied their motion.
James P. Nunemaker, Jr., Uniondale, N.Y. (Nancy S. Goodman of counsel), for appellants.
Wagner Wagner, LLP, Staten Island, N.Y. (Edward Wagner of counsel), for respondent.
Before: DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
It is well settled that whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the facts and circumstances of each case and is generally a question of fact for the jury ( see Trincere v. County of Suffolk, 90 N.Y.2d 976; Adsmond v. City of Poughkeepsie, 283 A.D.2d 598; Green v. Central Is. Nursing Home, 268 A.D.2d 503). Here, the Supreme Court, upon reargument, properly concluded that issues of fact existed which preclude summary judgment ( see Stachowski v. City of Yonkers, 294 A.D.2d 489; Adsmond v. City of Poughkeepsie, supra; Smith v. A.B.K. Apts., 284 A.D.2d 323; see also CPLR 2221[d]). To the extent that the dangerous condition may be open and obvious, under the circumstances of this case, it goes to the issue of the plaintiff's comparative negligence ( see Cupo v. Karfunkel, ___ A.D.2d ___ [Appellate Division Docket No. 2002-01937, decided herewith]; Acevedo v. Camac, 293 A.D.2d 430; Chambers v. Maury Povich Show, 285 A.D.2d 440).
RITTER, J.P., FRIEDMANN, LUCIANO and H. MILLER, JJ., concur.