Van Valkenburgh v. Philip Morris Companies, Inc.

Order, Supreme Court, New York County (Saralee Evans, J.), entered on or about June 6, 2002, which, to the extent appealed from, denied Philip Morris’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. The motion court properly found that there was an issue of fact as to whether the grate surrounding a tree in front of Philip Morris’s premises at 120 Park Avenue was a dangerous condition. Likewise, whether plaintiffs tripping over the grate was in some measure attributable to alcohol consumption or rushing to the station on his part is a factual issue properly left for the jury. 383 To the extent that defendant’s motion for summary judgment was premised upon its contention that it had neither actual nor constructive notice of the alleged hazard, it was properly denied in light of evidence sufficient to raise an issue of fact as to whether the alleged hazard was created by defendant (cf. Ohanessian v Chase Manhattan Realty Leasing Corp., 193 AD2d 567 [1993]). We have considered appellant’s remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Andrias, Saxe, Ellerin and Williams, JJ.