Summary
finding wet asphalt caused by a sprinkler is open and obvious
Summary of this case from Persaud v. PersaudOpinion
2014-12-17
Ellen BLUTH, appellant, v. BIAS YAAKOV ACADEMY FOR GIRLS, et al., respondents.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Cruser, Mitchell & Novitz, LLP, Farmingdale, N.Y. (Beth S. Gereg and Rondiene E. Novitz of counsel), for respondents.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Cruser, Mitchell & Novitz, LLP, Farmingdale, N.Y. (Beth S. Gereg and Rondiene E. Novitz of counsel), for respondents.
PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated February 1, 2013, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, a special education teacher employed by a private agency, slipped and fell while helping a student, who was attending the defendant Camp Chevra, run through a sprinkler on premises owned by the defendant Bias Yaakov Academy for Girls.
To establish a prima facie case of negligence, a plaintiff must demonstrate the existence of duty owed by the defendant to the plaintiff, a breach of that duty, and resulting injury which was proximately caused by the breach ( see Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294; Conneally v. Diocese of Rockville Ctr., 116 A.D.3d 905, 984 N.Y.S.2d 127; Rubin v. Staten Is. Univ. Hosp., 39 A.D.3d 618, 833 N.Y.S.2d 241). While a property owner has a duty to maintain the property in a reasonably safe manner ( see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868), the owner has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous ( see Atehortua v. Lewin, 90 A.D.3d 794, 935 N.Y.S.2d 102; Capozzi v. Huhne, 14 A.D.3d 474, 788 N.Y.S.2d 152; Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40).
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the wet condition of the asphalt caused by the sprinkler was an open and obvious condition which, as a matter of law, was not inherently dangerous ( see Atehortua v. Lewin, 90 A.D.3d 794, 935 N.Y.S.2d 102; Reiss v. Ulster County Agric. Socy., 78 A.D.3d 679, 910 N.Y.S.2d 164; Espada v. Mid–Island Babe Ruth League, Inc., 50 A.D.3d 843, 855 N.Y.S.2d 271; Ramsey v. Mt. Vernon Bd. of Educ., 32 A.D.3d 1007, 821 N.Y.S.2d 651; Barbato v. Hollow Hills Country Club, 14 A.D.3d 522, 789 N.Y.S.2d 199).
In opposition, the plaintiff failed to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). The plaintiff's affidavit, which contradicted her earlier deposition testimony, merely raised what clearly appear to be feigned issues of fact, and, as such, was insufficient to defeat summary judgment ( see Blochl v. RT Long Is. Franchise, LLC, 70 A.D.3d 993, 895 N.Y.S.2d 511; Amaya v. Denihan Ownership Co., LLC, 30 A.D.3d 327, 818 N.Y.S.2d 199; Joseph v. New York Racing Assn., 28 A.D.3d 105, 809 N.Y.S.2d 526; Stancil v. Supermarkets Gen., 16 A.D.3d 402, 790 N.Y.S.2d 552). Moreover, the plaintiff's expert's assertions, based on his inspection of the premises almost four years after the plaintiff's accident, were speculative, unsupported by the facts in evidence, and insufficient to raise a triable issue of fact ( see Grosskopf v. 8320 Parkway Towers Corp., 88 A.D.3d 765, 930 N.Y.S.2d 661; Houck v. Simoes, 85 A.D.3d 967, 925 N.Y.S.2d 658; Lal v. Ching Po Ng, 33 A.D.3d 668, 823 N.Y.S.2d 429; Amaya v. Denihan Ownership Co., LLC, 30 A.D.3d 327, 818 N.Y.S.2d 199).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.