Majority
—Order, Supreme Court, Bronx County (Barry Salman, J.), entered January 23, 2001, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny the motion as to that part of the complaint seeking recovery upon the theory that defendant created the complained of hazard, and otherwise affirmed, without costs.
Defendant’s motion for summary judgment dismissing the complaint should have been denied to the extent that plaintiff seeks to recover on the theory that defendant created the complained of hazard, since the record contains conflicting testimonial and documentary evidence giving rise to a triable issue as to whether the alleged hazard was in fact created by defendant (see, Gaillard v Olympia & York Rand Co., 289 AD2d 181 ). We have considered plaintiffs’ other contentions and find them unavailing. Concur — Sullivan, J.P., Rosenberger, Rubin, Friedman and Marlow, JJ.