Carlson v. Oak

Appeal from an order of the Supreme Court, Erie County (John R 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 *1155whether 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.