Zimmerman v. Skate Key Roller Rink, Inc.

Order, Supreme Court, Bronx County (Howard Silver, J.), entered February 25, 1997, which denied defendant’s motion for summary judgment, unanimously affirmed, without costs.

The motion was properly denied on the ground that there is an issue of fact as to whether defendant rented plaintiff a defective pair of roller skates. The expert report, opining that the cause of the skate wheel sticking was debris picked up while plaintiff was skating is inconclusive, and even the expert, who never examined the allegedly defective skate, did not presume to make “a precise determination of the failure * * * without the skate involved”. To what extent, if any, defendant should be relieved of liability because of plaintiffs conduct after noticing the defect is a question of comparative negligence that should be left to the jury (see, Turcotte v Fell, 68 NY2d 432, 437-438). Concur—Rosenberger, J. P., Wallach, Rubin, Tom and Colabella, JJ.