Jeffrey King, an Infant, by His Guardian ad Litem, Florence E. King, et al., Appellants, v. Rotterdam Shopping Center, Inc., et al., Respondents, 21 A.D.2d 387

Herlihy, J. The complaint alleged in part that the wall upon which the infant plaintiff was playing at the time of his fall was built, maintained and controlled by the defendant Rotterdam Shopping Center, with the permission of the defendant Gordon, along the property dividing line. It is further alleged that the defendants had knowledge of the said dangerous condition of the wall, permitted children to play thereon and that they negligently failed to properly improve the condition or to prevent children from using the wall.

These allegations are sufficiently broad to permit proof at the time of the trial that the retaining wall was improperly constructed and/or that a dangerous condition existed as a result of its construction. The defendant Gordon interposed an answer containing general denials, but the defendant Rotterdam, after generally denying the allegations of the complaint, filed a cross complaint against defendant Gordon which alleged that he owned and controlled the wall, and asked that in the event of a judgment, the rights of the defendants be determined pursuant to CPLR 3019 (subd. [b]) (formerly Civ. Prac. Act, § 264).

After joinder of issue, the infant plaintiff was examined before trial which, in sum, showed that he was 12 years of age; that he went to the shopping center to meet his brother who was there on business; that to reach the wall he went through the front of the shopping center and then went around back; that while waiting for his brother he was playing on the wall with a friend, whose radio fell, and in attempting to retrieve it, plaintiff fell from the wall onto the G-ordon property, striking a stake used to hold up lily plants, and received the injuries complained of.

The infant plaintiff testified that the wall on the Rotterdam side was approximately 3 feet high and in the appellants’ brief it is alleged, without dispute, that the retaining wall on the Gordon side was 9 feet, 10 inches high. Special Term concluded that there was no actionable negligence against either of the defendants.

The court further determined that there were no allegations of negligence as to any defects in the wall or faulty construction thereof and that infant plaintiff “ at best” was a licensee but if it should be determined that he was an invitee “ reasonable care only is required” and “ there is no proof of any structural defect or active negligence on the part of the defendants ”. The authorities relied upon by Special Term are precedents for setting aside verdicts and dismissing the complaints after a plenary trial. If there is a factual issue,

summary judgment should be denied. (Di Sabato v. Soffes, 9 A D 2d 297; Eagle v. Janoff, 12 A D 2d 638; Cooper v. Greyhound Bus Corp., 13 A D 2d 173; Stearns v. City of Poughkeepsie, 19 A D 2d 901.) From this record, it may not be concluded as a matter of law that actionable negligence did not exist which is what is required if

summary judgment is to be granted. The limited testimony of the infant plaintiff on the examination before trial is not sufficient to foreclose a factual issue regarding the happening of the accident, or to determine his status as a licensee or invitee. Whether the defendant Rotterdam or the defendant Gordon, or both, constructed, owned, maintained or controlled the retaining wall is a question of fact. Whether the defendants had knowledge that children congregated and played on the retaining wall is a question of fact.

WTiether the defendants permitted children to congregate and play on the retaining wall is a question of fact. Whether the defendants failed to stop children from playing on the retaining wall is a question of fact. Whether the retaining wall as constructed was improper and as such constituted a dangerous condition, in that there appeared to be a substantial drop to Gordon’s property, is a question of fact. Whether the retaining wall was improperly constructed in that it did not have a railing across its top is a question of fact.

Whether the defendants had knowledge of the said dangerous condition of the retaining wall is a question of fact. Whether the defendants failed to properly improve said dangerous condition is a question of fact. Whether the act of the infant plaintiff was contributory negligence must be determined, his age, intelligence, experience and the circumstances of the accident must be taken into consideration.

We infer that prior to building the retaining wall there had been a gradual slope from the defendant Rotterdam’s property to the defendant Gordon’s property and that the construction of the wall substantially changed the contour of the land.

These queries, and there may be others, raise possible issues of fact as to the negligence of the defendants and show ‘1 facts sufficient to require a trial ”. (CPLR 3212, subd. [b].) In the affidavit of defendant Rotterdam it was stated ‘1 that on the argument of the motion, a photograph or photographs, fairly and accurately depicting and portraying the wall in question, will be made available, and it will be seen therefrom that a perfectly good and solid and safe wall separated the real property of the respective defendants”. We note that there are no photographs before the court on this appeal.

The pleadings and affidavits of the movant parties demonstrate the existence of arguable issues which preclude granting

summary judgment. The cause of action, as alleged in the complaint, would appear to be governed by Mayer v. Temple Props. (307 N. Y. 559); Levine v. City of New York (309 N. Y. 88) and Soto v. City of New York (9 N Y 2d 683). Judgment and order should be reversed on the law and the facts and the motions denied.