Ramon Ruiz, Respondent, v. Harykevick Realty Corporation et al., Appellants

Ramon Ruiz, Respondent, v Harykevick Realty Corporation et al., Appellants. [679 NYS2d 126] [MAJORITY] Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 15, 1997, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. 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 NY2d 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 plaintiffs 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. Plaintiffs conduct is not to be equated with voluntary participation in dangerous activities such as sporting events (see, e.g., Turcotte v Fell, 68 NY2d 432). Concur — Milonas, J. P., Ellerin, Wallach and Tom, JJ.