Opinion
October 27, 1998
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
In light of factual issues as to whether plaintiff was a tenant to whom defendant landlords owed a duty and whether it was breached by defendants' conduct, summary judgment was properly denied ( see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395). Defendants' contention that plaintiff's act of climbing over the gate constituted an unforeseeable, reckless act that broke the causal chain and absolved defendants of liability is not preserved for review. In any event, issues of fact as to the foreseeability of plaintiff's act exist on the face of the record. Nor is there merit to defendants' preserved claim that plaintiff, in scaling the fence situated between him and his residence. assumed the risk entailed by an inherently dangerous activity. Plaintiff's conduct is not to be equated with voluntary participation in dangerous activities such as sporting events (see, e.g., Turcotte v. Fell, 68 N.Y.2d 432).
Concur — Milonas, J. P., Ellerin, Wallach and Tom, JJ.