Lauricella v Friol
2007 NY Slip Op 10356 [46 AD3d 1459]
December 21, 2007
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 13, 2008

Salvatore Lauricella, Respondent, v Peter M. Friol et al., Appellants.

[*1] Kenney Shelton Liptak Nowak LLP, Buffalo (Brian A. MacDonald of counsel), for defendants-appellants.

Cantor, Lukasik, Dolce & Panepinto, P.C., Buffalo (Mark H. Cantor of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered February 7, 2007 in a personal injury action. The order denied defendants' motion for summary judgment dismissing the amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he fell into an open pit, approximately eight- or nine-feet deep, inside a building owned by defendants. We reject the contention of defendants that Supreme Court erred in denying their motion for summary judgment dismissing the amended complaint. The fact that the open condition of the pit was readily observable "may be relevant to the issue of plaintiff's comparative negligence, but it does not negate the duty of defendants to keep their premises reasonably safe" (Morgan v Genrich, 239 AD2d 919, 920 [1997]; see MacDonald v City of Schenectady, 308 AD2d 125, 127 [2003]; see generally Basso v Miller, 40 NY2d 233, 241 [1976]). The further contention of defendants that they were entitled to summary judgment because plaintiff assumed the risk of his injuries is without merit. The doctrine of primary assumption of risk does not apply to the activity in which plaintiff was engaged at the time of his injury (see generally Morgan v State of New York, 90 NY2d 471, 482-486 [1997], rearg denied 90 NY2d 936 [1997]; Turcotte v Fell, 68 NY2d 432, 438-439 [1986]). Finally, we reject defendants' further contention that the conduct of plaintiff was the sole proximate cause of his injuries (see generally Howard v Poseidon Pools, 72 NY2d 972, 974-975 [1988]), or "so 'extraordinary and unforeseeable so as to break the causal chain' " (Babcock v County of Oswego, 169 Misc 2d 605, 610 [1996], affd 247 AD2d 843 [1998], lv denied 92 NY2d 802, quoting Kriz v Schum, 75 NY2d 25, 36 [1989]). Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.