Gluszak v. City of New York , 789 N.Y.S.2d 448 ( 2005 )

In an action to recover damages for personal injuries, the defendant Raytone Plumbing Specialities, Inc., appeals from an order of the Supreme Court, Queens County (Flug, J.), dated August 11, 2003, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

In support of its motion for summary judgment, the defendant Raytone Plumbing Specialities, Inc. (hereinafter Raytone), failed to establish its prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). A triable issue of fact exists as to whether Raytone created the allegedly defective condition at issue. Accordingly, the Supreme Court properly denied Raytone’s motion for summary judgment dismissing the complaint insofar as asserted against it.

In light of our determination, the parties’ remaining contentions have been rendered academic. H. Miller, J.E, Luciano, Rivera and Lifson, JJ., concur.