Opinion
(1671) CA 01-00972
December 21, 2001.
(Appeal from Judgment of Supreme Court, Erie County, Cosgrove, J. — Negligence.)
PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI AND LAWTON, JJ.
Judgment unanimously affirmed with costs.
Memorandum:
Supreme Court properly denied defendant's pretrial motion for summary judgment dismissing the complaint and defendant's motion for a directed verdict at the close of proof at trial. The fact that the dangerous condition that caused Jane Brenon (plaintiff) to fall was readily observable may relieve defendant of the duty to warn of that condition but does not negate the duty of defendant to keep its premises in a reasonably safe condition ( see, Williams v. Chenango County Agric. Socy., 272 A.D.2d 906, 906-907; Holl v. Holl, 270 A.D.2d 864).
The court directed a verdict for plaintiffs on the issue whether defendant's negligence, if any, was a proximate cause of plaintiff's injuries, and similarly directed a verdict for defendant on the issue whether plaintiff's comparative negligence, if any, was a proximate cause of those injuries. Defendant contends that the court erred in directing a verdict against it on the issue of causation. Although "[p]roximate cause is a question of fact for the jury where varying inferences are possible" ( Mirand v. City of New York, 84 N.Y.2d 44, 51; see, Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664, 674, rearg denied 93 N.Y.2d 1042), "[w]here the evidence as to the cause of the accident which injured plaintiff is undisputed, the question as to whether any act or omission of the defendant was a proximate cause thereof is one for the court and not for the jury" ( Rivera v. City of New York, 11 N.Y.2d 856, 857, rearg denied 11 N.Y.2d 1016, 12 N.Y.2d 715). Here, the cause of the accident was undisputed, and no reasonable jury could have found that defendant's negligence, if any, was not a cause of plaintiff's injuries ( see, Boone v. Hopkins, supra; Kovit v. Estate of Hallums, 261 A.D.2d 442, 443; Stanton v. Gasport View Dairy Farm, 244 A.D.2d 893, 894; Brecht v. Copper Sands, 237 A.D.2d 907).