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SARETSKY v. 85 KENMARE REALTY

112444/07, 3855A.

85 A.D.3d 89 (2011)

924 N.Y.S.2d 32

2011 NY Slip Op 3979

LORELLE SARETSKY et al., Appellants, v. 85 KENMARE REALTY CORP. et al., Respondents, et al., Defendant.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 12, 2011.

Attorney(s) appearing for the Case

Picciano & Scahill, P.C., Westbury ( Gilbert J. Hardy of counsel), for appellants.

Callahan & Fusco, LLC, New York City ( William A. Sicheri of counsel), for 85 Kenmare Realty Corp., respondent.

Faust Goetz Schenker & Blee LLP, New York City ( Lisa De Lindsay of counsel), for Sheryl Shoe Incorporated, respondent.

GONZALEZ, P.J., SAXE, ACOSTA and MANZANET-DANIELS, JJ., concur.

OPINION OF THE COURT

CATTERSON, J.

In this personal injury action, we reiterate the well-established principle that a finding of "open and obvious" as to a hazardous condition is never fatal to a plaintiff's negligence claim. It is relevant only to plaintiff's comparative fault. Therefore, we unanimously reverse the grant of summary judgment in favor of defendants 85 Kenmare Realty Corp. and Sheryl Shoe Incorporated and reinstate the complaint.

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