Moran v. County of Dutchess

10 Citing cases

  1. Negin v. New York Aquarium

    4 A.D.3d 511 (N.Y. App. Div. 2004)   Cited 7 times

    The defendants demonstrated, prima facie, that the chain was not defective and that the risks of jumping over it were readily perceivable by the infant plaintiff. Thus, they had no duty to warn the infant plaintiff of the chain's condition or the risks of his own behavior ( see Gibbons v. Lido Point Lookout Fire Dist., 293 A.D.2d 646; Garry v. Rockville Ctr. Union Free School Dist., 272 A.D.2d 437, 438; Plessias v. Scalia Home for Funerals, 271 A.D.2d 423; Rovegno v. Church of the Assumption, 268 A.D.2d 576; Reuscher v. Pergament Home Ctrs., 247 A.D.2d 603; Moran v. County of Dutchess, 237 A.D.2d 266; Kurshals v. Connetquot Cent. School Dist., 227 A.D.2d 593, 594; Jackson v. Supermarkets Gen. Corp., 214 A.D.2d 650, 651; cf. Cupo v. Karfunkel, 1 A.D.3d 48). In opposition, the plaintiffs failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). Accordingly, the defendants were entitled to summary judgment.

  2. Rogers v. SPIRIT CRUISES

    195 Misc. 2d 335 (N.Y. App. Term 2003)

    entitled to summary judgment on the ground that the allegedly dangerous condition was open and obvious. To the extent that the ancient and oft-criticized "no duty" rule in cases of open and obvious risk remains viable as a complete defense to landowners or lessees subject to premises liability in this state (see, Michalski v Home Depot, 225 F3d 113, 118-119 [2d Cir 2000] [analyzing New York case law and recognizing a split in authority among the Appellate Divisions with regard to observable hazards]), the doctrine is typically applied to situations where an inattentive plaintiff trips as a result of a plainly visible and easily avoidable object or condition that is not inherently dangerous (see, e.g., Schoen v King Kullen Grocery Co., 296 AD2d 486 [2d Dept 2002] [flat cardboard on supermarket Gibbons v Lido & Point Lookout Fire Dist., 293 AD2d 646 [2d Dept 2002] [cement parking block on firehouse floor]; Stemberga v Term Sec. Corp., 292 AD2d 372 [2d Dept 2002] [ottoman in restaurant]; Moran v County of Dutchess, 237 AD2d 266 [2d Dept 1997] [monument]; Hopson v Turf House, 252 AD2d 796 [3d Dept 1998] [floor planter "island" adjacent to restroom doorway]). Significantly, with but a single exception,[*] rigid application of the exculpatory open and obvious doctrine has given way in this Department to a more flexible rule consistent with modern principles of premises liability, a rule stated thusly: the fact that a dangerous condition is readily observable does not negate the duty of a landowner or lessee to keep the premises reasonably safe but simply raises triable issues as to the parties' comparative negligence (see, Gaffney v Port Auth. of N.Y. & N.J., 301 AD2d 424 [1st Dept 2003]; Orellana v Merola Assoc., 287 AD2d 412, 413 [1st Dept], supra; Tuttle v Anne LeConey, Inc., 258 AD2d 334, 335 [1st Dept 1999]; see also, Vereerstraeten v Cook, 266 AD2d 901 [4th Dept 1999]). Adhering to the above-cited controlling precedent from our Appellate Division, the conclusion is inescapable that the open and obvious

  3. Rogers v. Spirit Cruises, Inc.

    195 Misc. 2d 335 (N.Y. App. Term 2003)

    To the extent that the ancient and oft-criticized "no duty" rule in cases of open and obvious risk remains viable as a complete defense to landowners or lessees subject to premises liability in this State (see, Michalski v Home Depot, 225 F.3d 113, 118-119 [2d Cir, analyzing New York case law and recognizing a split in authority among the Appellate Divisions with regard to observable hazards]), the doctrine is typically applied to situations where an inattentive plaintiff trips as a result of a plainly visible and easily avoidable object or condition that is not inherently dangerous ( see, e.g., Schoen v. King Kullen Grocery Co., 296 A.D.2d 486 [2d Dept] [flat cardboard on supermarket floor]; Gibbons v Lido and Point Lookout Fire District, 293 A.D.2d 646 [2d Dept] [cement parking block on firehouse floor]; Stemberga v Term Security Corp., 292 A.D.2d 372 [2d Dept] [ottoman in restaurant]; Moran v County of Dutchess, 237 A.D.2d 266 [2d Dept] [monument]; Hopson v Turf House, Inc., 252 A.D.2d 796 [3d Dept] [floor planter "island" adjacent to restroom doorway]). Significantly, with but a single exception, rigid application of the exculpatory open and obvious doctrine has given way in this Department to a more flexible rule consistent with modern principles of premises liability, a rule stated thusly: the fact that a dangerous condition is readily observable does not negate the duty of a landowner or lessee to keep the premises reasonably safe but simply raises triable issues as to the parties' comparative negligence ( see, Gaffney v Port Auth., 301 A.D.2d 424, 2003 WL 124856, decided Jan. 16, 2003 [1st Dept]; Orellana v Merola Assocs., 287 A.D.2d 412, 413,supra [1st Dept]; Tuttle v Anne LeConey, Inc., 258 A.D.2d 334, 335 [1st Dept]; see also, Vereerstraeten v Cook, 266 A.D.2d 901 [4th Dept]).

  4. Germain v. Hegedus

    289 A.D.2d 443 (N.Y. App. Div. 2001)   Cited 7 times

    ORDERED that the order is affirmed, with costs. While an owner and occupier of land has a duty to act reasonably to maintain safe conditions in view of all circumstances (see, Basso v. Miller, 40 N.Y.2d 233), there is no duty to protect or warn against a condition that can be readily observed by a reasonable use of one's senses (see, Moran v. County of Dutchess, 237 A.D.2d 266; Perez v. New York City Indus. Dev. Agency, 223 A.D.2d 628; Zaffiris v. O'Loughlin, 184 A.D.2d 696; cf., Tagle v. Jakob, N.Y.2d [Nov. 28, 2001]). Here, the defendants established that the plaintiff was aware of a dangerous condition and proceeded at her own peril (see, Tarrazi v. 2025 Richmond Ave. Assocs., Inc., 260 A.D.2d 468; Bellofatto v. Frengs, 246 A.D.2d 566).

  5. Tresgallo v. Danica

    286 A.D.2d 326 (N.Y. App. Div. 2001)   Cited 15 times

    The Supreme Court properly granted Barr's cross motion for summary judgment dismissing the complaint insofar as asserted against it. During her deposition, the plaintiff testified that she did not see the "cardboard" before she fell, and that she did not notice whether it was raised from the floor. Since the plaintiff failed to identify any aspect of the masonite floorboards or their placement which was defective or caused her to fall, the jury would have been required to speculate as to the cause of her accident (see, Robinson v. Lupo, 261 A.D.2d 525; Castellitto v. Atlantic Pac. Co., 244 A.D.2d 379; Kuchman v. Olympia York, 238 A.D.2d 381). The Supreme Court also correctly concluded, as a matter of law, that the presence of the boards in the hallway was not an inherently dangerous condition, and was readily observable by the reasonable use of the plaintiff's senses (see, Dominitz v. Food Emporium, 271 A.D.2d 640; Boehme v. Edgar Fabrics, 248 A.D.2d 344; Moran v. County of Dutchess, 237 A.D.2d 266). S. MILLER, J.P., H. MILLER, SCHMIDT and COZIER, JJ., concur.

  6. Dominitz v. Food Emporium, Inc.

    271 A.D.2d 640 (N.Y. App. Div. 2000)   Cited 10 times

    On November 1, 1996, the plaintiff Regina Dominitz (hereinafter the injured plaintiff) tripped on the concrete curb of an island in a parking lot owned by the defendant Brook-Vale Equities, Inc., and leased by the defendant The Food Emporium, Inc. Although it was night, the flood lights in the parking lot were on, and the injured plaintiff subsequently testified at an examination before trial that she could see where she was going. Since the record establishes that the curb upon which the injured plaintiff tripped and fell was readily observable by the reasonable use of one's senses, the defendants established their entitlement to summary judgment dismissing the complaint (see,Campanaro v. Arizona Lipnob Estates, 259 A.D.2d 581; Moran v. County of Dutchess, 237 A.D.2d 266). In opposition, the plaintiffs failed to raise a triable issue of fact.

  7. Campanaro v. Arizona Lipnob Estates, Inc.

    259 A.D.2d 581 (N.Y. App. Div. 1999)   Cited 6 times

    Ordered that the appellant is awarded one bill of costs. Since the record establishes that the allegedly defective condition over which the plaintiff tripped and fell was readily observable by a reasonable use of one's senses, the appellant was entitled to summary judgment dismissing the complaint ( see, Moran v. County of Dutchess, 237 A.D.2d 266; Perez v. New York City Indus. Dev. Agency, 223 A.D.2d 628; Zaffiris v. O'Loughlin, 184 A.D.2d 696). S. Miller, J. P., Sullivan, Friedmann and Luciano, JJ., concur.

  8. Quinlan v. Kaufman

    258 A.D.2d 453 (N.Y. App. Div. 1999)   Cited 20 times

    The Supreme Court properly exercised its discretion in allowing the defendants to serve a late motion for summary judgment, even though the motion was made on the eve of trial and more than 120 days after the effective date of the amendment to CPLR 3212 (a) ( see, Anzalone v. Varis, 254 A.D.2d 381; Eason v. Herber Middle School, 250 A.D.2d 807; Krug v. Jones, 252 A.D.2d 572; see also, Wade v. Byung Yang Kim, 250 A.D.2d 323). The court properly granted the defendants' motion for summary judgment since the defendants had no duty to warn against a condition that, was readily observable by a reasonable use of one's senses ( see, Moran v. County of Dutchess, 237 A.D.2d 266; Laluna v. DGM Partners, 234 A.D.2d 519; Binensztok v. Marshall Stores, 228 A.D.2d 534; Ackermann v. Town of Fishkill, 201 A.D.2d 441, 443). Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.

  9. Boehme v. Edgar Fabrics

    248 A.D.2d 344 (N.Y. App. Div. 1998)   Cited 14 times

    Therefore, the Supreme Court correctly rejected this allegation as mere speculation ( see, Dapp v. Larson, 240 A.D.2d 918; Leary v. North Shore Univ. Hosp., 218 A.D.2d 686). Regarding the plaintiffs' assertion that the cardboard itself was a dangerous condition, the defendant had no duty to warn the injured plaintiff of a condition that he had not only seen before, but which was in plain view and could easily have been observed by him by the reasonable use of his senses ( see, Moran v. County of Dutchess, 237 A.D.2d 266; Perez v. New York City Indus. Dev. Agency, 223 A.D.2d 628; Zaffiris v. O'Loughlin, 184 A.D.2d 696). In fact, the injured plaintiff testified that he had actually seen the stack of cardboard cartons on which he stepped and that he purposely stepped on them.

  10. Bellofatto v. Frengs

    246 A.D.2d 566 (N.Y. App. Div. 1998)   Cited 6 times

    On these facts, summary judgment should have been granted to the defendants and the third-party defendant. There is no duty to warn against a condition that the plaintiff had seen before, was in plain view, and could easily have been observed by the plaintiff through the reasonable use of his senses ( see, e.g., Moran v. County of Dutchess, 237 A.D.2d 266; Perez v. New York City Indus. Dev. Agency, 223 A.D.2d 628; Zaffiris v. O'Loughlin, 184 A.D.2d 696). Rosenblatt, J.P., O'Brien, Thompson, Friedmann and Goldstein, JJ., concur.