Opinion
No. 58360/2012.
12-17-2014
Herbert PRIETO, Plaintiff, v. Anthony SIMONE and Valeria Simone, Defendants.
The Law Office of Rick S. Cowle, P.C. by NYSCEF, Carmel, attorneys for plaintiff. Kelly, Rode & Kelly, LLP by NYSCEF, Mineola, attorneys for defendants.
The Law Office of Rick S. Cowle, P.C. by NYSCEF, Carmel, attorneys for plaintiff.
Kelly, Rode & Kelly, LLP by NYSCEF, Mineola, attorneys for defendants.
Opinion
FRANCESCA E. CONNOLLY, J.
The following papers were considered in connection with the defendants' motion for summary judgment:
Notice of motion, affirmation, exhibits A–K1–13
Plaintiff's affirmation in opposition, exhibits A–K14–25
Reply affirmation26
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained on March 23, 2012, when he fell approximately six feet from the top of a retaining wall onto the driveway of the defendants' property located at 235 Pelhamdale Avenue, Pelham, New York.
The defendants now move for summary judgment on the issue of liability and to dismiss the complaint. The plaintiff opposes the motion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In support of their motion for summary judgment, the defendants rely upon, among other things, the plaintiff's deposition, the deposition of defendant Anthony Simone (hereinafter Simone), and the affidavit of Paul L. Angelides, P.E. (hereinafter Angelides).
At his deposition, the plaintiff testified that he worked for the defendants on various projects on their property over the course of the three years prior to his alleged fall. The plaintiff's project at the time of the incident was to weed, prepare the dirt in the garden, and plant grass seed on the property. He began this work on or around Tuesday, March 20, 2012, and had worked the previous three days for approximately ten hours a day. The plaintiff acknowledged that he was aware of the wall and its height before the accident occurred. On Friday, March 23, 2012 at approximately 5:00 p.m., the plaintiff was preparing soil near the retaining wall that abuts the defendants' driveway. He had a rake in his hands and his back to the driveway when his heel tripped on the wall and he fell six feet backwards over the wall, landing on the ground six feet below.
Simone testified at his deposition that he had instructed the plaintiff to pull weeds on his property. He also testified that a six-foot retaining wall runs along the driveway on his property. The wall was present when he purchased the property, and he has made no additions or changes to the wall.
Angelides, a licensed New York State Professional Engineer, performed an inspection of the defendants' premises on October 7, 2013, and reviewed the 1952, 1984, 2003, 2007, and 2010 Building Codes of New York State applicable to one-and two-family dwellings. Angelides assessed the areas of the defendants' property where the plaintiff fell. Angelides found no broken, loose, or otherwise damaged surfaces on the wall that could contribute to a fall. He found no building code provisions requiring the installation of guards along the top of a retaining wall. He further found that the defendants did not direct or control the work performed by the plaintiff. As such, Angelides opines within a reasonable degree of engineering certainty that the subject retaining wall contains no defects that can be cited as factors that contributed to the incident. He further opines that the accident was preventable had the plaintiff exercised the necessary care and diligence when working at a height, which is a known and foreseeable hazard.
Based on this testimony and Angelides' affidavit, the defendants contend that they owed no duty to the plaintiff because the alleged dangerous condition, the retaining wall, was an ordinary and obvious hazard of his employment. They contend that the plaintiff had worked on the premises for ten hours a day for the three days prior his fall, so that the plaintiff was clearly familiar with the six-foot drop off the retaining wall. The defendants also contend that the plaintiff was careless and incautious in raking with his back to the retaining wall, which resulted in his fall.
The plaintiff's opposition
The plaintiff opposes the motion and contends, among other things, that the defendants owed a duty to the plaintiff due to his long term relationship with the defendants as an independent contractor and because the plaintiff was the defendants' invitee. The plaintiff also contends that the defendants breached their duty by allowing dangerous and/or defective conditions to remain on the subject property and by failing to warn and supervise the plaintiff.
DISCUSSION/ANALYSIS
The defendants' motion for summary judgment on the issue of liability is granted. “While a possessor of real property has a duty to maintain that property in a reasonably safe condition, there is no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous” (Doughim v. M & U.S. Prop., Inc., 120 AD3d 466, 466–467 [2d Dept 2014] [internal citations omitted] ).
The defendants met their prima facie burden for summary judgment by establishing that the retaining wall and the six-foot elevation differential from the yard to the driveway were open and obvious and readily observable by the use of one's senses (see Jankite v. Scoresby Hose Co., 119 AD3d 1189, 1191 [2d Dept 2014] [A condition is open and obvious if it is “readily observable by the normal use of one's senses”]; see also Ulrich v. Motor Parkway Props., LLC, 84 AD3d 1221, 1223 [2d Dept 2011] [granting summary judgment dismissing common-law negligence claim where a six-foot high slope descending into excavation site “was an open and obvious condition that was readily observable by the reasonable use of one's senses, and was not inherently dangerous”] ). Moreover, the plaintiff had worked on the property for three years, giving him prior knowledge and an understanding of the elevation differential created by the retaining wall (see Anton v. Correctional Med. Servs., Inc., 74 AD3d 1682, 1683 [3d Dept 2010] [“Based ... upon defendant's prior knowledge that stretchers were sometimes stored in the corridors of the medical unit, the bedframe was open and obvious to anyone employing the reasonable use of their senses”] ). Additionally, as evidenced by the photograph depicting the area of the defendant's accident, the retaining wall was not obscured or concealed so as to be rendered a trap for the unwary (cf. Katz v. Westchester County Healthcare Corp., 82 AD3d 712, 713 [2d Dept 2011] [“A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted”] ). Moreover, the expert opinion proffered by Angelides in his affidavit established that the condition of the retaining was not in violation of any building codes, and that the defendants did not create or maintain a dangerous condition.
In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). The plaintiff's assertion that the defendants owed the plaintiff a heightened duty of care as their invitee at the time of the incident is without merit (see Basso v. Miller, 40 N.Y.2d, 233, 241 [1976] [abolishing the distinctions between invitees, licensees, and trespassers, and instituting a “single standard of reasonable care under the circumstances”] ).
Based upon the foregoing, it is hereby,
ORDERED that the defendants' motion for summary judgment dismissing the complaint is granted; and it is further
ORDERED that all other relief requested and not decided herein is denied.
This constitutes the decision and order of the Court.