Josephine E. Gordon v Guillermo Montoya

Gordon v Montoya 2005 NYSlipOp 09494 December 12, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Josephine E. Gordon, Respondent,
v
Guillermo Montoya et al., Appellants.

—[*1]

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Berler, J.), dated June 22, 2005, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she tripped and fell while descending exterior steps at the defendants' residence which were allegedly both inadequately lighted and contained height differentials in the risers. The defendants moved for summary judgment dismissing the complaint.

On the record presented, the alleged condition at best "merely negated a duty to warn and raised triable issues of fact as to comparative fault" (see Vinci v Vasaturo, 8 AD3d 262, 263 [2004]; see also Cupo v Karfunkel, 1 AD3d 48 [2003]). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment. Ritter, J.P., Rivera, Spolzino and Covello, JJ., concur.