Opinion
Submitted May 6, 1999
June 21, 1999
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated May 11, 1998, as denied their motion for partial summary judgment on the issue of liability.
Jeffrey B. Hulse, Islandia, N.Y., for appellants.
Chesney, Murphy Moran, Baldwin, N.Y. (Eugene C. Buccellato of counsel), for respondent Long Island Rail Road Co.
Patrick F. Adams, P.C., Bay Shore, N.Y. (Vito A. Cardo III, Charles J. Adams, and Daniel C. Adams of counsel), for respondent Town of Smithtown.
SONDRA MILLER, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
Contrary to the plaintiffs' contention, whether the 10-foot long depression in the pavement was open and obvious is a question of fact precluding summary judgment ( see, McGraw v. Ranieri, 202 A.D.2d 725).