The defendants have moved for summary judgment, dismissing the complaint against them, alleging that the plaintiff was injured when he was a guest at the Franklin Lunch & Grill, owned by defendants Corasaniti, when he fell from the rear deck and suffered a fracture of the cervical spine. The plaintiff alleges that he was attempting to lift himself up to sit on the deck without holding onto the railing, when he fell backwards.The complaint and bill of particulars allege that the defendants were negligent in designing, constructing and properly operating and maintaining the deck and that the design and height of the railing allowed patrons to sit upon it, even though it was several feet off the ground. The defendants' motion for summary judgment dismissing the complaint is predicated upon five grounds, as set forth below.

The law is well settled that to grant summary judgment it must clearly appear that no [*2]material and triable issue of fact is presented; this drastic remedy should not be granted where there is any doubt as to the existence of such issues. See, Halbina v. Brege, 41 AD3d 1218 (4th Dept. 2007). As the movants, the defendants are required to affirmatively demonstrate the merits of their defense through the tender of admissible evidence. See, Hunt v. Kosterellis, 27 AD2d 1178 (4th Dept. 2006).

The defendants first contend that they cannot be held liable for plaintiff's injury as a matter of law because they had no notice of the alleged hazard. Before a landowner may be held liable for a person's injury which has allegedly resulted from a dangerous condition on the premises, the plaintiff is required to establish that the landowner had actual or constructive notice of the hazard or that the landowner created the hazard. See, Majchrzak v. Harry's Harbor Place Grill, 28 AD3d 1109 (4th Dept. 2006). The defendants point to one answer in the plaintiff's deposition testimony where he indicates that he believes that a portion of the deck railing was loose and provide affidavits to show that the defendant owners had no knowledge of such a loose railing on the deck. The defendants, however, ignore the plaintiff's further argument that the deck was defective because the design and height of the railing allowed patrons to sit upon the railing, which was several feet off the ground, and that the plaintiffs had constructive and direct notice of this dangerous condition. To constitute constructive notice the condition must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. See Pelow v. Tri-Maine Development, 303 AD2d 940 (4th Dept. 2003). Not only have the defendants failed to address this allegation in moving for summary judgment, but the affidavits they have presented in support of their motion support the plaintiff's contention insofar as one witness, Robin Dumas, observed one of defendant's employees earlier in the day, instruct the plaintiff to get down from the railing, and another witness, Lenny Asper, in his affidavit indicated that he had observed the plaintiff two weeks before the incident standing on the deck's railing. As the proponent of the motion for summary judgment, the defendants have failed to establish as a matter of law that they did not create the dangerous condition or did not have actual or constructive notice of it. See, Quackenbush v. City of Buffalo, 43 AD3d 1386 (4th Dept. 2007). s such, the motion is denied on this ground.

The defendants next seek dismissal based upon plaintiff's allegations of the defendants' failure to warn of the allegedly dangerous condition. Defendants contend that since the restaurant's rear deck was raised above the back parking lot and there existed a drop in elevation from the deck's railing to the parking lot below, the danger was open and obvious to any reasonable person. The issue whether the dangerous condition was readily observable impacts on the plaintiff's comparative negligence, however, it does not negate the defendants' duty to keep the premises reasonably safe; an open and obvious condition merely negates the duty to warn. See, Pelow, supra; see also, Morgan v. Genrich, 239 AD2d 919 (4th Dept. 1997). As such, the defendants fail on their burden on this ground.

The defendants next move for summary judgment on the ground that the plaintiff's voluntary intoxication is a bar to any liability on their part. Were a plaintiff alleges the negligence of a property owner in maintaining its property causing injury to said plaintiff, the fact that the plaintiff may be intoxicated when the injury occurs is an issue the jury may consider in assessing comparative negligence, it does not absolve the defendant of the negligence. The [*3]obligation of a landowner is to keep its premises free from known dangerous conditions. See, D'Amico v. Christie, 71 NY2d 76 (1987). The motion on this ground is therefore denied.

The defendants next move on the ground that they are entitled to judgment as a matter of law based upon the doctrine of primary assumption of the risk. The doctrine of primary assumption of the risk is not a measure of the plaintiff's comparative fault, but a measure of the defendant's duty of care; assumption of the risk eliminates or reduces a tortfeasor's duty of care to the plaintiff and in the former case constitutes a complete bar to recovery. See, Lamey v. Folley, 188 AD2d 157 (4th Dept. 1993). The doctrine of primary assumption of the risk, however, is applied in cases where there is an elevated risk of danger, typically in sporting and entertainment events and activities, which is not the case here. See, Cohen v. Heritage Motor Tours, Inc., 205 AD2d 105 (2d Dept. 1994). Moreover, a question of fact exists as to whether the plaintiff fully comprehended the risk of sitting on the deck railing given the allegations of his intoxication. The defendants are not therefore entitled to judgment as a matter of law on this issue.

The defendants finally move for summary judgment on the ground that the plaintiff's own unforeseeable actions were the sole proximate cause of his injuries. Issues of foreseeability and causation are questions of fact. See, In re Eighth Judicial District Asbestos Litigation, 12 Misc 3d 936 (2006). Whether the plaintiff's conduct here was foreseeable constitutes an issue of fact given the affidavit testimony of the defendants' own witnesses who indicate that the plaintiff had engaged in such behavior previously. In addition, defendants are not entitled to summary judgment on this ground in light of this Court's determination with respect to the existence of an issue of fact with respect to the defendants' constructive knowledge of the alleged dangerous condition.

Inasmuch as the defendants have failed to meet their burden of establishing their entitlement to judgment as a matter of law, the burden does not shift to the plaintiff to raise an issue of fact. See, Loveless v. American Ref-Fuel Co. Of Niagra, LP, 299 AD2d 819 (4th Dept. 2002).

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the defendants' motion for summary judgment dismissing the complaint is denied.

ENTER

Dated: January 24, 2008

Syracuse, New York

Donald A. Greenwood

Supreme Court Justice