PICARELLO v. ZILBERMAN

ORDERED that the order is affirmed insofar as appealed from, with costs.

It is well settled that whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the facts and circumstances of each case and is generally a question of fact for the jury ( see Trincere v. County of Suffolk, 90 N.Y.2d 976; Adsmond v. City of Poughkeepsie, 283 A.D.2d 598; Green v. Central Is. Nursing Home, 268 A.D.2d 503). Here, the Supreme Court, upon reargument, properly concluded that issues of fact existed which preclude summary judgment ( see Stachowski v. City of Yonkers, 294 A.D.2d 489; Adsmond v. City of Poughkeepsie, supra; Smith v. A.B.K. Apts., 284 A.D.2d 323; see also CPLR 2221[d]). To the extent that the dangerous condition may be open and obvious, under the circumstances of this case, it goes to the issue of the plaintiff's comparative negligence ( see Cupo v. Karfunkel, ___ A.D.2d ___ [Appellate Division Docket No. 2002-01937, decided herewith]; Acevedo v. Camac, 293 A.D.2d 430; Chambers v. Maury Povich Show, 285 A.D.2d 440).

RITTER, J.P., FRIEDMANN, LUCIANO and H. MILLER, JJ., concur.