Carlson v Oak
2006 NY Slip Op 02013 [27 AD3d 1154]
March 17, 2006
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 17, 2006


Charles C. Carlson, Individually and as Executor of Ann Carlson, Deceased, et al., Respondents, v A. Douglas Oak et al., Appellants.

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Appeal from an order of the Supreme Court, Erie County (John P. Lane, J.), entered May 17, 2005. The order denied defendants' motion for summary judgment dismissing the second amended complaint.

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

Memorandum: Plaintiffs commenced this action alleging that decedent fell down a stairwell at defendants' summer residence and died as a result of injuries sustained in the fall. Supreme Court properly denied defendants' motion for summary judgment dismissing the second amended complaint. Even assuming, arguendo, that defendants met their initial burden on the motion, we conclude that plaintiffs raised an issue of fact whether the stairwell was in a defective condition and, if so, whether that defective condition was a proximate cause of decedent's injuries and death (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Pigott, Jr., P.J., Scudder, Gorski, Martoche and Green, JJ.