Opinion
March 28, 2000.
Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about March 2, 1999, which, to the extent appealed from, granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment on the issue of liability, unanimously modified, on the law, to deny defendant's motion for summary judgment and reinstate the complaint, and otherwise affirmed, without costs.
Cheryl Eisberg Moin for plaintiffs-appellants.
Robert P. Siegel for defendant-respondent.
NARDELLI, J.P., MAZZARELLI, LERNER, FRIEDMAN, JJ.
The motion court erred in granting summary relief to defendant, since the evidence demonstrated that triable factual issues existed as to whether defendant negligently installed a window guard in the apartment in which the infant plaintiff resided and as to whether any such negligence was a proximate cause of the infant plaintiff's harm (see, Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 522). Plaintiffs' cross motion for summary judgment on liability was, however, properly denied given the conflicting evidence presented by the parties.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.