Opinion
September 30, 1994
Appeal from the Supreme Court, Niagara County, Rath, Jr., J.
Present — Pine, J.P., Lawton, Callahan and Doerr, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint. Plaintiffs raised several material issues of fact to be resolved at trial, including whether defendants were lessors out-of-possession of the premises; whether plaintiff husband's accident is partially attributable to a structural defect that defendants were contractually obligated to repair; and whether defendants had actual or constructive notice of the alleged defect.