Baron v. 305-323 E. Shore Rd. Corp.

PETER B. SKELOS

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellants. Friedman Harfenist Kraut & Perlstein, LLP, Lake Success, N.Y. (Steven J. Harfenist and Heather L. Smar of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX and JOSEPH J. MALTESE, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Asarch, J.), entered December 21, 2012, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered February 7, 2013, which, upon the order, is in favor of the defendant and against them dismissing the complaint.

ORDERED that on the Court's own motion, the notice of appeal dated February 15, 2013, is deemed to be a notice of appeal by the plaintiffs ( seeCPLR 2001; Matter of Tagliaferri v. Weiler, 1 N.Y.3d 605, 775 N.Y.S.2d 753, 807 N.E.2d 864); and it is further,

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the defendant's motion for summary judgment dismissing the complaint is denied, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).

At about 5:30 p.m. on December 4, 2008, the injured plaintiff allegedly sustained personal injuries when he tripped and fell over a ramp outside a building owned by the defendant. The injured plaintiff testified at his deposition that, at the time of the accident, it was completely dark. He further testified that, as he was walking through the defendant's parking lot, he did not see the ramp because its color blended into that of the surrounding pavement and because the parking lot was inadequately lit.

A landowner has a duty to maintain his or her property in a reasonably safe manner to prevent foreseeable injuries ( see Peralta v. Henriquez, 100 N.Y.2d 139, 760 N.Y.S.2d 741, 790 N.E.2d 1170; see also Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). A landlord, however, has no duty to protect or warn against an open and obvious condition that is not inherently dangerous as a matter of law ( see Espada v. Mid–Island Babe Ruth League, Inc., 50 A.D.3d 843, 855 N.Y.S.2d 271). To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendant must establish that it maintained the premises in a reasonably safe condition and that it did not create a dangerous or defective condition on the property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it ( see Villano v. Strathmore Terrace Homeowners Assn. Inc., 76 A.D.3d 1061, 908 N.Y.S.2d 124).

Here, the defendant failed to establish, prima facie, that the allegedly dangerous condition was open and obvious ( see Gordon v. Pitney Bowes Mgt. Servs., Inc., 94 A.D.3d 813, 942 N.Y.S.2d 155; Katz v. Westchester County Healthcare Corp., 82 A.D.3d 712, 917 N.Y.S.2d 896; Solan v. Great Neck Union Free School Dist., 43 A.D.3d 1035, 842 N.Y.S.2d 52). The issue of whether a dangerous condition is open and obvious is fact-specific ( see Gordon v. Pitney Bowes Mgt. Servs., Inc., 94 A.D.3d at 814, 942 N.Y.S.2d 155), and cannot be divorced from the surrounding circumstances ( see Katz v. Westchester County Healthcare Corp., 82 A.D.3d at 713, 917 N.Y.S.2d 896). In support of its motion, the defendant submitted, among other things, the injured plaintiff's deposition testimony and a report prepared by the plaintiffs' expert engineer. The defendant's submissions failed to eliminate all triable issues of fact as to whether the allegedly unlit ramp was open and obvious.

In addition, the defendant failed to establish, prima facie, that it lacked constructive notice of the alleged defective condition ( see Totten v. Cumberland Farms, Inc., 57 A.D.3d 653, 871 N.Y.S.2d 179; Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 869 N.Y.S.2d 222), or that the injured plaintiff's conduct was the sole proximate cause of his accident ( see Palahnuk v. Tiro Rest. Corp., 116 A.D.3d 748, 983 N.Y.S.2d 603).

The defendant's remaining contentions are without merit.

As the defendant failed to meet its initial burden, it is not necessary to consider the sufficiency of the plaintiffs' papers in opposition ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, the Supreme Court erred in granting the defendant's motion for summary judgment dismissing the complaint.