Opinion
2014-07-16
Bennett RUSSO, etc., respondent, v. INCORPORATED VILLAGE OF ATLANTIC BEACH, appellant.
Devitt Spellman Barrett, LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), for appellant. V. Roy Cacciatore, P.C., Freeport, N.Y., for respondent.
Devitt Spellman Barrett, LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel), for appellant. V. Roy Cacciatore, P.C., Freeport, N.Y., for respondent.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Bruno, J.), dated May 21, 2013, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
A property owner has a duty to maintain its premises in a reasonably safe condition, but has no duty to protect or warn against open and obvious conditions that are not inherently dangerous ( see Brande v. City of White Plains, 107 A.D.3d 926, 966 N.Y.S.2d 911;Gallo v. Hempstead Turnpike, LLC, 97 A.D.3d 723, 948 N.Y.S.2d 660;Buccino v. City of New York, 84 A.D.3d 670, 923 N.Y.S.2d 322;Comack v. VBK Realty Assoc., Ltd., 48 A.D.3d 611, 852 N.Y.S.2d 370). However, whether a condition is open and obvious depends on the circumstances of the case, and something that ordinarily would be readily observable may be obscured by other objects or by inadequate illumination ( see Pellegrino v. Trapasso, 114 A.D.3d 917, 918, 980 N.Y.S.2d 813;Acevedo v. New York City Tr. Auth., 97 A.D.3d 515, 947 N.Y.S.2d 599;Clark v. AMF Bowling Ctrs., Inc., 83 A.D.3d 761, 921 N.Y.S.2d 273;Beck v. Bethpage Union Free School Dist., 82 A.D.3d 1026, 919 N.Y.S.2d 192;Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 864 N.Y.S.2d 554).
Here, the Supreme Court properly determined that the defendant failed to establish its prima facie entitlement to judgment as a matter of law, in that the defendant did not demonstrate that the condition that allegedly caused the plaintiff's son's injuries was open, obvious, and not inherently dangerous ( see Zhuo Zheng Chen v. City of New York, 106 A.D.3d 1081, 966 N.Y.S.2d 177;Clark v. AMF Bowling Ctrs., Inc., 83 A.D.3d at 761–762, 921 N.Y.S.2d 273). Since the defendant failed to meet its burden, we need not consider the sufficiency of the plaintiff's papers submitted in opposition to the motion ( see Stoppeli v. Yacenda, 78 A.D.3d 815, 911 N.Y.S.2d 119).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint. MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.