Opinion
03-25-2016
Sharon JORDAN–PARKER and Clark Parker, Plaintiffs–Appellants, v. CITY OF BUFFALO, et al., Defendants, Destro & Brothers Concrete Company, Inc., Defendant–Respondent. (Appeal No. 1.).
Law Offices of Eugene C. Tenney, PLLC, Buffalo (Nathan C. Doctor of Counsel), for Plaintiffs–Appellants. Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Alyssa L. Jordan of Counsel), for Defendant–Respondent.
Law Offices of Eugene C. Tenney, PLLC, Buffalo (Nathan C. Doctor of Counsel), for Plaintiffs–Appellants.
Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Alyssa L. Jordan of Counsel), for Defendant–Respondent.
Opinion
MEMORANDUM:
Plaintiffs commenced this action seeking damages for injuries sustained by Sharon Jordan–Parker (plaintiff) when she tripped and fell over the base of a construction sign that had been placed on the sidewalk near the corner of South Park Avenue and Dorrance Avenue in Buffalo. The sign had been used in connection with a construction project undertaken by defendant City of Buffalo (City). Defendant Destro & Brothers Concrete Company, Inc. (Destro) was the general contractor and defendant DiDonato Associates, P.E., P.C. (DiDonato) was the consultant engineer on the project. Destro moved for summary judgment dismissing the complaint against it, and DiDonato and the City moved for summary judgment dismissing the complaint and cross claims against them. Supreme Court, in separate orders, granted the motions of Destro (appeal No. 1), DiDonato (appeal No. 2), and the City (appeal No. 3). We affirm in all three appeals.
Defendants met their initial burden on their respective motions of establishing as a matter of law that the condition that caused plaintiff's injury was open and obvious and not inherently dangerous (see Koepke v. Deer Hills Hardware, Inc. 118 A.D.3d 957, 958, 987 N.Y.S.2d 854). Defendants submitted, inter alia, the deposition of plaintiff, wherein she testified that she noticed the base of the sign immediately before she fell (see Kaufmann v. Lerner N.Y., Inc., 41 A.D.3d 660, 661, 838 N.Y.S.2d 181; Connor v. Taylor Rental Ctr., 278 A.D.2d 270, 270, 718 N.Y.S.2d 605), and photographs of the accident scene showing that there was sufficient room on the sidewalk to allow pedestrians to avoid the base of the sign (see Lazar v. Burger Heaven, 88 A.D.3d 591, 591, 931 N.Y.S.2d 296). In opposition to the motion, plaintiffs asserted that defendants failed to comply with regulations applicable to the project, but their unsubstantiated and nonspecific assertions in that regard were insufficient to raise a triable issue of fact (see generally Matthews v. Vlad Restoration Ltd., 74 A.D.3d 692, 693, 904 N.Y.S.2d 391).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.