Boland v. 480 E. 21st St., LLC

Full title: Dean Boland, appellant, v. 480 East 21st Street, LLC, respondent.

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Nov 18, 2015

2015 N.Y. Slip Op. 8375 (N.Y. App. Div. 2015)

Opinion

2014-06866

11-18-2015

Dean Boland, appellant, v. 480 East 21st Street, LLC, respondent.

Ornstein & Ornstein, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellant. Shein & Associates, P.C., Syosset, N.Y. (Frank A. Polacco of counsel), for respondent.

WILLIAM F. MASTRO, J.P.

THOMAS A. DICKERSON

LEONARD B. AUSTIN

JOSEPH J. MALTESE, JJ. (Index No. 22700/09)

Ornstein & Ornstein, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellant.

Shein & Associates, P.C., Syosset, N.Y. (Frank A. Polacco of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Walker, J.), dated May 19, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

"A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" (Toes v National Amusements, Inc., 94 AD3d 742, 742; see Rovegno v Church of Assumption, 268 AD2d 576). "However, a landowner has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous . . . , or where the allegedly dangerous condition can be recognized simply as a matter of common sense" (Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556, 557; see Bazerman v Gardall Safe Corp., 203 AD2d 56, 57).

Here, the defendant established, prima facie, that it maintained its premises in a reasonably safe condition (see Turner v City of New York, 290 AD2d 336; Rovegno v Church of Assumption, 268 AD2d at 576). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

MASTRO, J.P., DICKERSON, AUSTIN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court