Hotzoglou v. Hotzoglou

• Decision Date: 27 November 1995
• Citation: 221 A.D.2d 594,634 N.Y.S.2d 501
• Parties: Despina HOTZOGLOU, Respondent, v. Nick HOTZOGLOU, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 501

634 N.Y.S.2d 501

221 A.D.2d 594

Despina HOTZOGLOU, Respondent, v. Nick HOTZOGLOU, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Nov. 27, 1995.

Galvano & Xanthakis, New York City (Anthony Xanthakis, of counsel), for appellants.

John N. Spiridakis, Long Island City (Steven Hoffman, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, MILLER and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Vinik, J.), dated July 6, 1994, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff slipped and fell, sustaining physical injuries, while descending an exterior staircase at the defendants' home. Contrary to the defendants' contention, issues of fact exist which preclude an award of summary judgment. There is evidence in the record that the defendants were aware that the staircase was in a dilapidated condition and that it became slippery in the rain. Moreover, the defendants acknowledged that the exterior staircase did not have a handrail, and they did not establish, as a matter of law, that their home is exempt from the applicable building ordinances that require one (see, Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246, 331 N.Y.S.2d 651, 282 N.E.2d 610; Major v. Waverly & Ogden, Inc., 7 N.Y.2d 332, 197 N.Y.S.2d 165, 165 N.E.2d 181; Eidlitz v. Village of Dobbs Ferry, 97 A.D.2d 747, 468 N.Y.S.2d 585; Lattimore v. Falcone, 35 A.D.2d 1069, 316 N.Y.S.2d 363). Indeed, "[e]ven if the fall was precipitated by a misstep, 'if a hand-rail had been furnished, the [plaintiff] might have held on to it as [s]he descended the stairs, and could have avoided falling. Therefore, the absence of the rail, if required by law, would seem to be a proximate cause of the accident' " (Lattimore v. Falcone, supra, at 1069). Since summary judgment should not be awarded when, as here, there are genuine issues of material fact (see, Museums at Stony Brook v. Village of Patchogue Fire Dept., 146 A.D.2d 572, 536 N.Y.S.2d 177), the Supreme Court correctly denied the defendants' motion.