Opinion
1366 CA 18–01312
02-01-2019
Robin EASLEY, Plaintiff–Appellant, v. MOUNT OLIVE BAPTIST CHURCH, Defendant–Respondent, et al., Defendant.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (BETHANY A. RUBIN OF COUNSEL), FOR PLAINTIFF–APPELLANT. LAW OFFICE OF JOHN WALLACE, BUFFALO (ALYSON C. CULLITON OF COUNSEL), FOR DEFENDANT–RESPONDENT.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (BETHANY A. RUBIN OF COUNSEL), FOR PLAINTIFF–APPELLANT.
LAW OFFICE OF JOHN WALLACE, BUFFALO (ALYSON C. CULLITON OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated against defendant Mount Olive Baptist Church.
Memorandum: Plaintiff was injured when the heel of her shoe allegedly got caught in a sidewalk crack outside a building in the City of Buffalo owned by defendant-respondent (defendant). Plaintiff appeals from an order granting defendant's motion for summary judgment dismissing the complaint against it. We reverse.
Defendant contended on its motion that it lacked constructive notice of the alleged sidewalk defect and that, in any event, the alleged defect was trivial and/or open and obvious. Defendant's moving papers, however, identified triable issues of fact regarding its constructive notice of the alleged defect (see generally Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 1062, 908 N.Y.S.2d 124 [2d Dept. 2010] ). Defendant's moving papers also raised triable issues of fact regarding the triviality of the sidewalk's alleged defect (see Gotay v. New York City Hous. Auth., 127 A.D.3d 693, 695–696, 7 N.Y.S.3d 311 [2d Dept. 2015] ; Seivert v. Kingpin Enters., Inc., 55 A.D.3d 1406, 1407, 865 N.Y.S.2d 187 [4th Dept. 2008] ; see generally Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77–84, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ). Moreover, contrary to defendant's contention, " ‘[t]he fact that a dangerous condition is open and obvious does not negate the duty to maintain premises in a reasonably safe condition, but, rather, bears only on the injured person's comparative fault’ " ( Jaques v. Brez Props., LLC, 162 A.D.3d 1665, 1667, 79 N.Y.S.3d 438 [4th Dept. 2018] ). We therefore agree with plaintiff that Supreme Court erred in granting defendant's motion.
Plaintiff's remaining contention is academic in light of our determination.