
    Sandra Fogel, by George Fogel, Her Guardian ad Litem, et al., Respondents, v. Ida Lipman, Appellant.
   Order entered on January 20, 1961 granting plaintiffs’ motion for summary judgment in this personal injury action unanimously reversed, on the law, with $20 costs and disbursements to the appellant and the motion denied, with $10 costs. Plaintiff is a granddaughter of defendant, and the action is based on the latter’s negligent maintenance of a multiple dwelling owned by her. More specifically, in her moving affidavit plaintiff alleges she was caused to fall while walking up some steps in the vestibule by reason of a piece of improperly repaired step breaking off underfoot. In an examination before trial, however, plaintiff testified the step was already broken and out-of-repair, and made no mention of a piece breaking off as she stepped on it. Moreover, in the examination before trial plaintiff evinced sufficient knowledge of the existence of the broken step prior to the happening of the accident to raise an issue as to her contributory negligence. “ With reference to the issues of contributory negligence, the essential facts are exclusively within the knowledge of the plaintiffs. Under the circumstances, therefore, summary judgment should not have been granted despite the inability of defendant to controvert the facts in the moving affidavits (De France v. Oestrike, 8 A D 2d 735).” (Vignola v. Britts, 11 A D 2d 801.) Concur — Botein, P. J., Breitel, Rabin, Eager and Bergan, JJ.  