Opinion
No. 2021-07344 Index No. 8942/15
08-28-2024
Elspeth A. Beier, respondent, v. Damon Giglio, appellant, et al., defendants (and third-party actions).
Rosenberg Fortuna & Laitman, LLP, Garden City, NY (Brett D. Zinner of counsel), for appellant. Ronemus & Vilensky, LLP (Lisa M. Comeau, Garden City, NY, of counsel), for respondent.
Rosenberg Fortuna & Laitman, LLP, Garden City, NY (Brett D. Zinner of counsel), for appellant.
Ronemus & Vilensky, LLP (Lisa M. Comeau, Garden City, NY, of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER DEBORAH A. DOWLING LILLIAN WAN, JJ.
DECISION & ORDER
In an action to recover damages for personal injures, the defendant Damon Giglio appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 25, 2021. The order, insofar as appealed from, denied that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she fell down a single-step riser on the exterior deck of residential property owned by the defendant Damon Giglio. The plaintiff testified at her deposition that on the day of the accident, the afternoon sun shined directly into her eyes and reflected off multiple surfaces on the property, rendering her momentarily blind and unable to see the approximately five-inch step down. Giglio moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him. In an order dated March 25, 2021, the Supreme Court, among other things, denied that branch of Giglio's motion. Giglio appeals.
Property owners have a common-law duty to maintain property in a reasonably safe condition, but there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous (see Kellman v 45 Tiemann Assoc., 87 N.Y.2d 871, 872; Basso v Miller, 40 N.Y.2d 233, 239; Cosme v New York City Dept. of Educ., 221 A.D.3d 857, 858-859). "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" (Rosenman v Siwiec, 196 A.D.3d 523, 524-525 [internal quotation marks omitted]; see Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d 776, 777). However, "[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" (Shermazanova v Amerihealth Med., P.C., 173 A.D.3d 796, 797 [internal quotation marks omitted]; see Oruc v Zelik, 216 A.D.3d 804; Rosenman v Siwiec, 196 A.D.3d at 525).
Here, the plaintiff testified at her deposition that her momentary blindness was caused by not only the sun, but also by multiple surfaces on the property reflecting the sunlight into her eyes when she looked away to avoid the sun. Because those surfaces were part of the property that Giglio had a duty to maintain in a reasonably safe condition, Giglio failed to demonstrate, prima facie, that the condition of the step, in combination with the reflective surfaces, was open and obvious and not inherently dangerous (see Saretsky v 85 Kenmare Realty Corp., 85 A.D.3d 89, 92; Roros v Oliva, 54 A.D.3d 398, 400). Likewise, the unsworn expert report submitted by Giglio in support of his motion was insufficient to meet his prima facie burden (see CPLR 2106, 3212[b]; Mazzola v City of New York, 32 A.D.3d 906, 907).
To sever the causal connection between a defendant's conduct and the plaintiff's injuries, a superseding act must be "'extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct'" (Kriz v Schum, 75 N.Y.2d 25, 36, quoting Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315). What is foreseeable or normal may be the subject of varying inferences and is generally for the finder of fact to resolve (see Raldiris v Enlarged City Sch. Dist. of Middletown, 179 A.D.3d 1111, 1114). Here, the plaintiff testified that although she had previously traversed the single step, she was not consciously aware of it prior to her fall. Because the plaintiff testified that she was unaware of the change in elevation, Giglio failed to demonstrate, prima facie, that the plaintiff's decision to continue walking while momentarily blinded was unforeseeable or unreasonable under the circumstances (see id.).
Accordingly, the Supreme Court properly denied that branch of Giglio's motion which was for summary judgment dismissing the complaint insofar as asserted against him regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
BRATHWAITE NELSON, J.P., MILLER, DOWLING and WAN, JJ., concur.