Gordils v. Audobon Equities Ltd. , 738 N.Y.S.2d 49 ( 2002 )

—Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered September 13, 2000, which denied defendant’s motion for summary judgment, unanimously affirmed, without costs.

The infant plaintiff, a resident in defendant’s building, was injured while attempting to use a fire escape to enter the building. In view of evidence that the building intercom system had not been working for at least a month, that defendant’s employee had been informed that the intercom was not working, that other tenants and defendant’s own employee had used the fire escape as a means to enter the building, a question of fact exists as to whether the infant plaintiff’s use of the fire escape was a foreseeable consequence of defendant’s failure to maintain the intercom system (see, Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872; Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Ozuna v Lemle Realty Corp., 254 AD2d 55). An issue of fact is also raised as to defendant’s maintenance of the fire escape and whether its close proximity to the wrought iron fence onto which plaintiff was allegedly caused to fall constituted negligence. Concur — Williams, J.P., Mazzarelli, Ellerin, Lemer and Rubin, JJ.