Opinion
2014-08-6
Souleyman DOUGHIM, respondent, v. M & U.S. PROPERTY, INC., et al., appellants.
Rutherford & Christie, LLP, New York, N.Y. (David S. Rutherford, Melissa N. Girvan, and Michael C. Becker of counsel), for appellants. Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for respondent.
Rutherford & Christie, LLP, New York, N.Y. (David S. Rutherford, Melissa N. Girvan, and Michael C. Becker of counsel), for appellants. Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Richmond County (Fusco, J.), dated December 4, 2013, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On July 9, 2010, the plaintiff allegedly was injured when he tripped and fell over a lock that was affixed to a set of sidewalk-level cellar doors. It is undisputed that the cellar doors were adjacent to the front of a store located at 442 86th Street, in Brooklyn. At the time of the accident, the defendant General Nutrition Center, Inc., doing business as GNC Live Well, leased the store, and the defendant M & U.S. Property, Inc., owned the premises. The plaintiff commenced this action alleging that the defendants were negligent in the maintenance of their property. The defendants subsequently moved for summary judgment dismissing the complaint, contending that the lock over which the plaintiff allegedly tripped was not a dangerous condition, was trivial as a matter of law and therefore not actionable, or was open and obvious. The Supreme Court denied the defendants' motion.
An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition ( Boudreau–Grillo v. Ramirez, 74 A.D.3d 1265, 904 N.Y.S.2d 485;Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767 N.Y.S.2d 40;Farrar v. Teicholz, 173 A.D.2d 674, 676, 570 N.Y.S.2d 329). “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [internal quotation marks omitted]; see Nagin v. K.E.M. Enters., Inc., 111 A.D.3d 901, 975 N.Y.S.2d 753). However, liability will not be imposed for trivial defects which do not constitute a trap or nuisance ( see Dery v. K Mart Corp., 84 A.D.3d 1303, 1304, 924 N.Y.S.2d 154;Richardson v. JAL Diversified Mgt., 73 A.D.3d 1012, 1013, 901 N.Y.S.2d 676;Joseph v. Villages at Huntington Home Owners Assn., Inc., 39 A.D.3d 481, 835 N.Y.S.2d 231). “In determining whether a defect is trivial as a matter of law, a court must examine all of the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place, and circumstances of the injury” ( Fontana v. Winery, 84 A.D.3d 863, 864–865, 923 N.Y.S.2d 594 [internal quotation marks omitted]; see Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489).
While a possessor of real property has a duty to maintain that property in a reasonably safe condition ( see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868;Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 854, 931 N.Y.S.2d 336), there is no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous ( see Mathew v. A.J. Richard & Sons, 84 A.D.3d 1038, 1039, 923 N.Y.S.2d 218;Katz v. Westchester County Healthcare Corp., 82 A.D.3d 712, 713, 917 N.Y.S.2d 896;Tyz v. First St. Holding Co., Inc., 78 A.D.3d 818, 819, 910 N.Y.S.2d 179;Cupo v. Karfunkel, 1 A.D.3d at 52, 767 N.Y.S.2d 40). “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances” ( Katz v. Westchester County Healthcare Corp., 82 A.D.3d at 713, 917 N.Y.S.2d 896). “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” ( Katz v. Westchester County Healthcare Corp., 82 A.D.3d at 713, 917 N.Y.S.2d 896;see Stoppeli v. Yacenda, 78 A.D.3d 815, 816, 911 N.Y.S.2d 119;Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 1062, 908 N.Y.S.2d 124).
Here, the defendants failed to establish, prima facie, that the lock, over which the plaintiff allegedly tripped and fell, was not a dangerous condition ( see Jelle v. Etfried Realty Corp., 266 App.Div. 981, 44 N.Y.S.2d 381;cf. Kempe v. Concourse Realty Corp., 237 App.Div. 708, 262 N.Y.S. 404). Furthermore, the defendants failed to make a prima facie showing that the lock was trivial and therefore not actionable ( see Deviva v. Bourbon St. Fine Foods & Spirit, 116 A.D.3d 654, 983 N.Y.S.2d 295;Nagin v. K.E.M. Enters., Inc., 111 A.D.3d at 901, 975 N.Y.S.2d 753), or that the lock was open and obvious and not inherently dangerous ( see Stoppeli v. Yacenda, 78 A.D.3d at 816, 911 N.Y.S.2d 119;Gradwohl v. Stop & Shop Supermarket Co., LLC, 70 A.D.3d 634, 637, 896 N.Y.S.2d 85). Since the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiff's opposition papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint. ENG, P.J., LEVENTHAL, SGROI and MALTESE, JJ., concur.