Henshaw v. Chelsea DHC, LLC

The plaintiff alleged that he sustained personal injuries while removing an item from Silvestri's apartment with the plaintiff's coworker. The two workers utilized an outdoor metal fire escape, which was accessible from the apartment through a sliding glass door off the living room, with the intention to toss the item over the railing down into a truck positioned below. The fire escape contained a square opening in the floor, which led to a ladder affixed to the side of the building, accessing the ground below. The two workers walked onto the fire escape, each holding one end of the item, when the plaintiff stepped backwards into the square opening and fell to the ground below. The Chelsea defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them, followed by Silvestri, who separately moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against him. By order dated April 9, 2025, the Supreme Court, among other things, granted the Chelsea defendants' motion and that branch of Silvestri's motion. The plaintiff appeals. While a possessor of real property has a duty to maintain that property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233, 241), "there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous" (DiScalo v Mannix Family Mkt. Forest & Richmond Ave, LLC, 206 AD3d 693, 694 [internal quotation marks omitted]; see Williams v E & R Jamaica Food Corp., 202 AD3d 1028, 1029; Robbins v 237 Ave. X, LLC, 177 AD3d 799). "Thus, to obtain summary judgment on this ground, a defendant must establish that a condition was both open and obvious and, as a matter of law, was not inherently dangerous" (Mejia v 2959 Fulton St. Realty, Inc.,

240 AD3d 881, 884 [internal quotation marks omitted]; see Baran v Port Auth. of N.Y. & N.J., 196 AD3d 674, 675).

"A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident" (Papetti v City of Long Beach, 227 AD3d 919, 919 [internal quotation marks omitted]; see Sebagh v Capital Fitness, Inc., 202 AD3d 853, 855). However, "[t]he determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case" (Mejia v 2959 Fulton St. Realty, Inc., 240 AD3d at 884 [internal quotation marks omitted]; see Brett v AJ 1086 Assoc., LLC, 189 AD3d 1153, 1154). "The issue of whether a hazard is latent or open and obvious is generally fact- specific and thus usually a jury question, but a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion . . . on the basis of clear and undisputed evidence" (Kastin v Ohr Moshe Torah Inst., Inc., 170 AD3d 697, 698-699 [internal quotation marks omitted]; see Tagle v Jakob, 97 NY2d 165,

169).

The law is clear that evidence that the dangerous condition was open and obvious cannot relieve the landowner of the burden to exercise reasonable care in maintaining the property in a safe condition (see Pirreca v Smithtown Cent. Sch. Dist., 208 AD3d 526; Kastin v Ohr Moshe Torah Inst., Inc., 170 AD3d at 698-699; Cupo v Karfunkel, 1 AD3d 48, 52).

"Proof that a dangerous [*2]condition is open and obvious does not preclude a finding of liability' but instead speaks to the issue of the plaintiff's comparative negligence" (Laruccia v Lewis J. Newton & Sons, 242 AD3d 854, 855 [internal quotation marks omitted]; see Everett v CMI Servs. Corp., 206 AD3d 620, 621-622; Cupo v Karfunkel, 1 AD3d at 52). Here, the Chelsea defendants and Silvestri established their respective prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against each of them. The submissions in support of the respective motions, including, inter alia, photographs of the fire escape, a transcript of the deposition testimony of the parties, and a statement of a nonparty witness, demonstrated that the square opening in the floor of the fire escape was both open and obvious and, as a matter of law, not inherently dangerous under all the existing circumstances (see Laruccia v Lewis J. Newton & Sons, 242 AD3d at 855; Martinez v Fairfield Hills E., LLC, 213 AD3d 837, 837; cf. Dougherty v 359 Lewis Ave. Assoc., LLC, 191 AD3d 763). Moreover, the Chelsea defendants established, prima facie, that they maintained the fire escape in a reasonably safe condition (see D.S. v Sachem Cent. Sch. Dist., 223 AD3d 925, 926; Shuttleworth v Saint Margaret's R.C. Church in Middle Vil., 209 AD3d 786, 787; cf. Dougherty v 359 Lewis Ave. Assoc., LLC, 191 AD3d 763). The evidence presented by the plaintiff in opposition, including affidavits and corresponding reports of his expert, failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted summary judgment dismissing the amended complaint asserted against the Chelsea defendants and Silvestri.

GENOVESI, J.P., DOWLING, WAN and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court

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