Vinci v Vasaturo

2004 NYSlipOp 04318

June 1, 2004

Appellate Division, Second Department

As corrected through Wednesday, August 25, 2004

Josephine Vinci, Appellant, v Diane Vasaturo, Respondent.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated August 22, 2003, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff commenced this action to recover damages for personal injuries after she twisted her ankle while descending steps at the defendant's house that were allegedly both inadequately lighted and contained height differentials in the risers. The defendant moved for summary judgment dismissing the complaint arguing, inter alia, that the condition complained of was open and obvious. However, on the record presented, the alleged condition merely negated a duty to warn and raised triable issues of fact as to comparative fault (see Cupo v Karfunkel, 1 AD3d 48 [2003]). Accordingly, we reverse the order granting the defendant's motion for summary judgment dismissing the complaint. Ritter, J.P., Townes, Mastro and Skelos, JJ., concur.