Ripperger v. Brookhaven Health Care Facility

In an action to recover damages for personal injuries, the defendant third-party defendant Turf Haven Ltd., d/b/a Creative Irrigation, appeals (1) from an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 17, 1999, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it and the third-party complaint, and (2), as limited by its brief, from so much of an order of the same court dated October 27, 1999, as, in effect, upon reargument, adhered to the prior determination. Ordered that the appeal from the order dated May 17, 1999, is dismissed, as that order was superseded by the order dated October 27, 1999, made upon reargument; and it is further, Ordered that the order dated October 27, 1999, is affirmed insofar as appealed from; and it is further, Ordered that the plaintiff is awarded one bill of costs. We agree with the Supreme Court that there is an issue of fact whether the appellant created the dangerous condition which allegedly caused the plaintiff to slip and fall (cf., Golding v Powell & Dempsey, 247 AD2d 510; Maguire v Southland Corp., 245 AD2d 347). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.