Kinfe v. Port Auth. of N.Y. and N.J

Full title: MESFIN KINFE et al., Respondents, v. PORT AUTHORITY OF NEW YORK AND NEW…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 7, 1996

232 A.D.2d 373 (N.Y. App. Div. 1996)

648 N.Y.S.2d 322

Opinion

October 7, 1996.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), dated March 1994, which denied their separate motions for summary judgment.

Before: Mangano, P. J., Bracken, Pizzuto and Krausman, JJ.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that material issues of fact exist which preclude awarding summary judgment in favor of the defendants ( see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). It cannot be said, as a matter of law, that the allegedly hazardous condition was open and obvious and thus did not create an unreasonable risk of harm ( see, O'Neil v Port Auth., 111 AD2d 375; cf., Pilato v Diamond, 209 AD2d 393; Ray v Crown Drug Stores, 34 AD2d 679). Furthermore, contrary to the defendants' contention, the activity engaged in by the plaintiffs decedent did not involve an obvious danger for which there was no duty to warn ( cf., Caris v Mele, 134 AD2d 475).