Opinion
August 25, 1986
Appeal from the Supreme Court, Kings County (Monteleone, J.).
Order dated September 11, 1985 reversed, on the law, and motion and cross motion denied.
Appeal from so much of the order dated October 10, 1985 as denied the plaintiff's motion for renewal and reargument dismissed as academic, in light of our determination on the appeal from the order dated September 11, 1985.
Order dated October 10, 1985, otherwise reversed, on the law, and cross motion denied.
The plaintiff is awarded one bill of costs payable by the respondents and third-party defendant-respondent appearing separately and filing separate briefs.
Summary judgment is a drastic remedy which should not be granted lightly. If there is any doubt as to the existence of a triable issue of fact summary judgment must be denied (see, Rotuba Extruders v Ceppos, 46 N.Y.2d 223; Coley v Michelin Tire Corp., 99 A.D.2d 795). Further, "issues of fact as to whether the defendant's acts and omissions contributed substantially to the occurrence are properly questions to be determined by the trier of fact" (Johnson v New York City Hous. Auth., 114 A.D.2d 438, 439). In the instant action, the plaintiff tendered sufficient evidence to raise triable issues of fact as to whether the alleged inoperability or defective condition of the window lock facilitated the entry into her apartment of an intruder who proceeded to assault and rape her. Accordingly, summary judgment should not have been granted (cf. Olan v Farrell Lines, 64 N.Y.2d 1092; Zuckerman v City of New York, 49 N.Y.2d 557; Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065; Environmental Concern v Larchwood Constr. Corp., 101 A.D.2d 591). The plaintiff's examination before trial, when read in its entirety, does not negate her claim as a matter of law (cf. Schneider v Kings Highway Hosp. Center, 67 N.Y.2d 743).
Furthermore, under New York law a valid cause of action was stated against all the defendants (see, e.g., Miller v State of New York, 62 N.Y.2d 506; Kush v City of Buffalo, 59 N.Y.2d 26; Nallan v Helmsley-Spear, Inc., 50 N.Y.2d 507; Bolm v Triumph Corp., 33 N.Y.2d 151; Craft v Mid Is. Dept. Stores, 112 A.D.2d 969). Lawrence, J.P., Eiber, Kooper and Spatt, JJ., concur.