Marranca v. 4548 Main Street, Inc.

—Order unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court should have denied defendant’s motion for summary judgment. The record establishes that Nicholas J. Marranca (plaintiff) was injured when he fell on the flagstone entrance to premises owned by defendant and leased by his employer. It further establishes that, before the accident, defendant had occasionally maintained and repaired the flagstones. That maintenance and repair included replacing the mortar when it became cracked and pointing up the flagstones. Summary judgment is precluded because a question of fact exists whether defendant retained control of the premises or assumed responsibility to maintain a particular area, thus rendering it liable for the defective condition that caused plaintiff’s injuries (see generally, Buckowski v Smith, 185 AD2d 556, lv denied 80 NY2d 762; Cherubini v Testa, 130 AD2d 380, 382). (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Summary Judgment.) Present—Pine, J. P., Lawton, Fallon, Davis and Boehm, JJ.