
    Louis Calabria, as Parent and Natural Guardian of John J. Calabria, an Infant, Appellant, v Robert J. Fisher et al., Respondents.
    [782 NYS2d 199]
   Appeal from an order of the Supreme Court, Onondaga County (John V Centra, J), entered December 10, 2003. The order granted defendants’ motions for summary judgment in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion of defendant Robert J. Fisher and reinstating the amended complaint against him and as modified the order is affirmed without costs.

Memorandum: We conclude that Supreme Court properly granted the motion of defendant Denny’s Restaurant, Inc., now known as Denny’s Inc., for summary judgment dismissing the amended complaint and all cross claims against it and properly granted the motion of defendant Camillus Mall Associates, L.E for summary judgment dismissing “all claims,” i.e., the amended complaint and amended third-party complaint, against it (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We further conclude, however, that the court erred in granting the motion of defendant Robert J. Fisher for summary judgment dismissing the amended complaint against him, and we therefore modify the order accordingly. The record establishes that there is an issue of fact whether plaintiffs son assumed the risk of injury, i.e., whether the risk of being dropped on his head was a known, apparent, or reasonably foreseeable consequence of his actions (see generally Turcotte v Fell, 68 NY2d 432, 439 [1986]). In addition, plaintiffs son “will not be deemed to have assumed the risks of reckless or intentional conduct,” and there is an issue of fact whether Fisher engaged in reckless conduct (Morgan v State of New York, 90 NY2d 471, 485 [1997]). Present—Hurlbutt, J.P., Gorski, Martoche, Lawton and Hayes, JJ.  