Opinion
February 27, 1992
Appeal from the Supreme Court, New York County (Beverly S. Cohen, J.).
Plaintiff allegedly sustained personal injuries when she dove into a swimming pool located on the premises of defendant motel. Defendant-appellant, the installer of the pool, contends that plaintiff's own negligence was the sole cause of the accident, but, as questions of fact remain in this regard, summary judgment was properly denied (see, e.g., Levy v. Cascades Operating Corp., 289 N.Y. 714; Kriz v. Schum, 75 N.Y.2d 25). Certainly, at this juncture, there is no reason to discredit plaintiff's assertion that she was unaware that the area into which she dove was unsafe for diving (cf., Smith v. Stark, 67 N.Y.2d 693). Moreover, since defendant-appellant held itself out as a manufacturer of the pool when it entered into the contract with the motel owners, it may be held liable as such (see, Commissioners of State Ins. Fund v. City Chem. Corp., 290 N.Y. 64). On a previous motion for summary judgment by a supplier of components for the pool to dismiss the third-party action brought against it by the wholesale distributor, we held that issues of fact exist as to whether some design or manufacturing flaw in the pool contributed to the event (Treston v. Allegretta, 166 A.D.2d 282). These issues of fact have not been resolved on the record now before us.
Concur — Milonas, J.P., Kupferman, Ross and Rubin, JJ.