Majority
p. 1020Jeffrey K. Schubert et al., Respondents, v Joseph P. Bruno, Individually and Doing Business as Haeberle Associates and Doing Business as Bruno’s Mobil, et al., Appellants. [617 NYS2d 680]
—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
p. 1021
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. (Appeal from Order of Supreme Court, Niagara County, Rath, Jr., J.— Summary Judgment.) Present—Pine, J. P., Lawton, Callahan and Doerr, JJ.