Opinion
13212 Index No. 23756/16 Case No. 2020-03345
02-25-2021
Jose R. JIMENEZ, Plaintiff–Appellant, v. The CITY OF NEW YORK et al., Defendants, New York City Housing Authority, Defendant–Respondent.
Law Office of Constantine Fotopoulos, New York (Constantine Fotopoulos of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York ( Patrick J. Lawless of counsel), for respondent.
Law Office of Constantine Fotopoulos, New York (Constantine Fotopoulos of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York ( Patrick J. Lawless of counsel), for respondent.
Acosta, P.J., Renwick, Singh, Mendez, JJ.
Order, Supreme Court, Bronx County (Ruben Franco, J.), entered on or about February 4, 2020, which granted defendant New York City Housing Authority's (N.Y.CHA) motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Plaintiff was injured when he leaned against an unlocked gate on property owned and maintained by NYCHA, and the gate swung open and he fell. Plaintiff testified that the presence of the gate was not readily observable because the gate was not sufficiently distinguishable from the adjacent stationary fencing.
Upon our review of the photographic evidence in the record, we conclude that the presence of the unlocked gate was open and obvious to a person making reasonable use of his senses and that, since an unlocked gate is not inherently dangerous, plaintiff's injuries were not caused by any negligent maintenance of its property by NYCHA ( see Boyd v. New York City Hous. Auth., 105 A.D.3d 542, 543, 964 N.Y.S.2d 10 [1st Dept. 2013], lv denied 22 N.Y.3d 855, 2013 WL 6065937 [2013] ). The gate was not obscured by people, objects, or its location. Moreover, nothing about the gate or the fencing created optical confusion; the gate had characteristics that distinguished it from the surrounding fencing ( see Langer v. 116 Lexington Ave., Inc., 92 A.D.3d 597, 599, 939 N.Y.S.2d 370 [1st Dept. 2012], lv denied 24 N.Y.3d 907, 2014 WL 5369099 [2014] ; Acosta v. Gouverneur Ct. L.P., 133 A.D.3d 470, 18 N.Y.S.3d 865 [1st Dept. 2015] ).
We have considered plaintiff's remaining arguments and find them unavailing.