| Bradley v DiPaterio Mgt. Corp. |
| 2010 NY Slip Op 08885 [78 AD3d 1096] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Bartholomew Bradley, Respondent, v DiPaterioManagement Corp. et al., Appellants. |
—[*1] Monsour, Winn, Kurland & Warner, LLP, Lake Success, N.Y. (Stephen G. Winn ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.),entered September 9, 2009, as denied that branch of their motion which was to dismiss thecomplaint insofar as asserted against the defendants Paul DiPaterio, Sebastiano DiPaterio, andConstantino DiPaterio.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when he slipped, tripped, and fell on plywood boardsplaced on the ground leading to the entrance of a house owned by the defendants Paul DiPaterio,Sebastiano DiPaterio, and Constantino DiPaterio (hereinafter collectively the defendants). After anote of issue was filed, the defendants moved for summary judgment dismissing the complaintinsofar as asserted against them. The court, inter alia, denied the defendants' motion.
The defendants failed to demonstrate their prima facie entitlement to judgment as a matter oflaw (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of NewYork, 49 NY2d 557 [1980]). The defendants' and the plaintiff's deposition testimony, whichwas submitted in support of the defendants' motion, raised triable issues of fact as to whether thedefendants had actual or constructive notice of the allegedly dangerous condition and, if so, areasonable time to remedy it (see Gordon v American Museum of Natural History, 67NY2d 836, 837 [1986]; Giulini v Union Free School Dist. #1, 70 AD3d 632, 632-633[2010]; Williams v Long Is. R.R., 29 AD3d 900 [2006]; DeGruccio v 863 JerichoTurnpike Corp., 1 AD3d 472 [2003]).
Furthermore, contrary to the defendants' contention, the fact that this allegedly dangerouscondition might have been open and obvious does not negate the defendants' duty to maintaintheir premises in a reasonably safe condition, but rather, raises an issue of fact concerning theplaintiff's comparative negligence (see DeGruccio v 863 Jericho Turnpike Corp., 1 AD3d472 [2003]; Cupo v Karfunkel, 1 AD3d 48, 52 [2003]; Chambers v Maury PovichShow, 285 AD2d 440 [2001]; Morgan v [*2]Genrich,239 AD2d 919 [1997]). Mastro, J.P., Covello, Angiolillo and Lott, JJ., concur.