Biggers v. Farmingdale United Methodist Church , 562 N.Y.S.2d 717 ( 1990 )

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Kutner, J.), dated July 24, 1989, which denied their motion for summary judgment.

Ordered that the order is affirmed, with costs.

The plaintiff Anne Biggers seeks to recover for injuries sustained when her foot went through a wooden porch floor located on premises owned by the defendant. The plaintiffs claim that the porch was in disrepair and that the wood was rotting. The defendant denies it had prior notice, either actual or constructive, of any defective or dangerous condition and also affirmatively asserts that the injured plaintiff’s own negligence was a proximate cause of the accident. The plaintiffs unsuccessfully sought summary judgment before Supreme Court and now appeal from the denial of their motion. We affirm.

Because there is "often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances” (Andre v Pomeroy, 35 NY2d 361, 364), summary judgment is rare in negligence cases, even when the facts are undisputed (see, Andre v Pomeroy, supra, at 364). Since in this case there exist fundamental questions of fact, including, inter alia, whether the defendant had notice of the condition of which the plaintiffs complain, denial of the motion was proper. Bracken, J. P., Kooper, Harwood and Balletta, JJ., concur.