Opinion
2018-09732 Index No. 707884/15
06-24-2020
Keisha HOLMES, respondent, v. MACY'S RETAIL HOLDINGS, INC., etc., et al., appellants.
Braff, Harris, Sukoneck & Maloof, New York, N.Y. (Annie Cha and Brian Harris of counsel), for appellants. Raphaelson & Levine Law Firm, P.C., New York, N.Y. (Steven C. November of counsel), for respondent.
Braff, Harris, Sukoneck & Maloof, New York, N.Y. (Annie Cha and Brian Harris of counsel), for appellants.
Raphaelson & Levine Law Firm, P.C., New York, N.Y. (Steven C. November of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, HECTOR D. LASALLE, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered July 12, 2018. The order denied the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging that she sustained injuries when she tripped and fell on a wooden pallet on the floor of a basement hallway of the defendants' store. The wooden pallet was partially blocking the entrance to a stockroom that the plaintiff was attempting to enter. Following discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the defendants' motion. The defendants appeal.
A landowner has a duty to maintain its premises in a reasonably safe condition (see Peralta v. Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 ; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous (see Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767 N.Y.S.2d 40 ). Proof that a dangerous condition is open and obvious does not preclude a finding of liability against an owner for failure to maintain property in a safe condition (see Gradwohl v. Stop & Shop Supermarket Co., LLC, 70 A.D.3d 634, 635–636, 896 N.Y.S.2d 85 ; Cupo v. Karfunkel, 1 A.D.3d at 52, 767 N.Y.S.2d 40 ). "The determination of ‘[w]hether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances’ " ( Clark v. AMF Bowling Ctrs., Inc., 83 A.D.3d 761, 761, 921 N.Y.S.2d 273, quoting Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 1009, 864 N.Y.S.2d 554 ), and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case (see Robbins v. 237 Ave. X, LLC, 177 A.D.3d 799, 799–800, 113 N.Y.S.3d 235 ; Clark v. AMF Bowling Ctrs., Inc., 83 A.D.3d at 762, 921 N.Y.S.2d 273 ; Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d at 1009, 864 N.Y.S.2d 554 ; Mauriello v. Port Auth. of N.Y. & N.J., 8 A.D.3d 200, 200, 779 N.Y.S.2d 199 ).
Here, the defendants failed to establish, prima facie, that the wooden pallet that partially blocked the doorway was not a hazardous condition and that they maintained their premises in a reasonably safe condition (see Russo v. Home Goods, Inc., 119 A.D.3d 924, 990 N.Y.S.2d 95 ; Gradwohl v. Stop & Shop Supermarket Co., LLC, 70 A.D.3d at 635–636, 896 N.Y.S.2d 85 ; Salomon v. Prainito, 52 A.D.3d 803, 861 N.Y.S.2d 718 ). According to the deposition testimony of the defendants' employee, pallets were not allowed to be positioned on the floor in a manner where they partially blocked an entrance. The defendants also failed to establish, prima facie, that they did not have constructive notice of the condition that caused the plaintiff to fall (see Birnbaum v. New York Racing Assn., Inc., 57 A.D.3d 598, 869 N.Y.S.2d 222 ).
Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
SCHEINKMAN, P.J., COHEN, LASALLE and WOOTEN, JJ., concur.