Czochanski v. Tishman Speyer Properties, Ltd., 45 Fed.Appx. 45, 46 (2d Cir. 2002) (quoting Trincere v. County of Suffolk, 688 N.E.2d 489, 490 (1997)). “However, a defendant in a premises liability action can establish ‘its entitlement to judgment as a matter of law by demonstrating that the [alleged dangerous condition] was open and obvious and not inherently dangerous.'” Rodriguez v. Brit. Airways PLC, No. 17-CV-03691 (BMC), 2017 WL 6372733, at *4 (E.D.N.Y. Dec. 12, 2017) (citing Maraia v. Church of Our Lady of Mount Carmel, 828 N.Y.S.2d 525, 526 (2nd Dep't 2007)). “A condition is open and obvious if it ‘could have been or should have been appreciated by the user or [if it] can be recognized as a matter of common sense.'” Id. at *5 (quoting Stephen v. Sico Inc., 654 N.Y.S.2d 449, 451 (3rd Dep't 1997)). “[U]nder New York law, whether a plaintiff observed a condition prior to tripping over it is immaterial to the question of whether the condition was open and obvious.”
A condition is open and obvious if it "could have been or should have been appreciated by the user or [if it] can be recognized as a matter of common sense." Stephen v. Sico Inc., 237 A.D.2d 709, 710, 654 N.Y.S.2d 449, 451 (3rd Dep't 1997) (internal citations omitted). Accordingly, the touchstone of analysis in holding a condition to have been open and obvious is whether "it was readily observable through the use of one's senses."
This evidence demonstrated that the ladder failed to support him and was sufficient to establish, as a matter of law, a prima facie case under Labor Law § 240 (1) (see Longshore v. Paul Davis Sys. of Capital Dist., supra at 966; Hall v. Conway, 241 A.D.2d 592). As for GE's contentions, plaintiff's uncertainty as to when the coworkers holding the ladder left does not raise a triable issue of fact since it fails to rebut plaintiff's unequivocal testimony that he realized no one was securing the ladder when he fell. Furthermore, the mere fact that plaintiff's accident "was not witnessed does not require that summary judgment be denied" (Davis v. Pizzagalli Constr. Co., supra at 961; see Stephen v. Sico, Inc., 237 A.D.2d 709, 711). Moreover, GE's contention that plaintiff's fall may have been occasioned by his drinking the evening before is speculation which is insufficient to defeat summary judgment (see Hall v. Conway, supra at 593).
We reverse. Liability cannot rest, as Gravely would have it, on the facile assertion that plaintiff was improperly trained in the relatively simple act of pushing a button with his foot to activate the engine of a hand-pushed machine, a procedure which plaintiff had successfully accomplished numerous times over the span of 16 winters (see Stephen v. Sico, 237 A.D.2d 709). No showing is made as to what training beyond that shown would be necessary for the task.
Where, as here, the sole legal cause of plaintiff's injuries is his own reckless conduct, which showed a disregard for an obvious hazard, a defendant is not liable in negligence (see, Olsen v. Town of Richfield, 81 N.Y.2d 1024, 1026; Egan v. A.J. Constr. Co., 94 N.Y.2d 839; Pytel v. New Jersey Tr. Auth., 267 A.D.2d 155 [defendant not liable where train struck intoxicated plaintiff who ignored "no trespassing" signs, jumped from platform and fell asleep on train tracks]; Grover v. Town of Montour, 252 A.D.2d 859; Rice v. New York City Hous. Auth., 239 A.D.2d 400;compare, Tuttle v. Ann LeConey Inc., 258 A.D.2d 334 [issue of comparative fault raised where defendants advised plaintiff to reach high shelf by standing on a chair with wheels, although she specifically requested a stepladder]). Plaintiff had experience working in and around subway platforms (see,Egan, supra, at 841; Aviles v. Crystal Mgmt., Inc., 253 A.D.2d 607, lv denied 93 N.Y.2d 804; Stephen v. Sico Inc., 237 A.D.2d 709), and he was aware that trains were still running. He testified at trial that before his accident he had seen at least two trains come into the station, take on and discharge passengers, and pull away.
While the notice of appeal is dated prior to the judgment and, therefore, appears premature, we shall in the interest of justice treat the notice as valid (see, CPLR 5520 [c]; Stephens v. Sico Inc., 237 A.D.2d 709, 710 n). Initially, we note that although the Trial Judge presided over a prior unrelated dispute involving the same parties, that was not a basis for mandatory recusal (see, Greenman v. Greenman, 175 A.D.2d 360, 360, appeal dismissed 78 N.Y.2d 1124), nor did it constitute a legal ground for disqualification under Judiciary Law § 14. Therefore, there is no merit to plaintiff's claim that the Trial Judge should have recused himself.
Further, Karg's evidence presented no viable challenge to undermine the evidence of safety training provided by Calgon. Supreme Court, finding that Calgon had no duty to give warnings of obvious risks and dangers emanating from the hazardous condition in which the waste water pit was maintained (see, Stephen v. Sico Inc., 237 A.D.2d 709, 710; Baptiste v. Northfield Foundry Mach. Co., 184 A.D.2d 841, 843), properly granted its motion. Accordingly, we affirm the order of Supreme Court which granted the motion of Calgon for summary judgment dismissing the third-party complaint and from the further order of said court which adhered to such determination after reargument.
This appeal by the Westons followed. Initially, while the Westons prematurely filed their notice of appeal from Supreme Court's decision instead of from the order entered thereon, we shall exercise our discretion and treat the notice as valid ( see, CPLR 5520 [c]; Stephen v. Sico, Inc., 237 A.D.2d 709, n; Cullen v. Lake Placid Vacation Corp., 221 A.D.2d 854, 855, n). Moreover, while there are other procedural irregularities contained in the Westons' pro se papers, they do not, in our view, warrant dismissal of the appeal ( see, e.g., Matter of Matteo, 134 A.D.2d 261, 262).
In the absence of any foundation, the opinion is purely speculative and lacks sufficient probative value to raise a genuine issue of fact (see, Fallon v. Hannay Son, supra). With respect to plaintiff's failure to warn claim, we note that there is no duty to warn product users of obvious risks and dangers — that being those risks and dangers which could have been or should have been appreciated by the user or that can be recognized as a matter of common sense (see, e.g., Stephen v. Sico, Inc., 237 A.D.2d 709). In this case, no warning would have given plaintiff any greater knowledge of the obvious danger involved in walking on the unguarded platform than he already had acquired through his own observations and experiences on the subject truck, as well as similar trucks, in the preceding 2 1/2-year period before his accident (see, e.g., Neri v. John Deere Co., 211 A.D.2d 915, 916).
First, the Court finds that "defendant had no duty to train, instruct or direct the claimant in the performance of so common and ordinary an act as removing a bag of [vegetables] from a kettle of hot water" (Wright v State of New York, UID No. 2008-015-088 [Ct Cl, Collins, J., Nov. 18, 2008]). The risk associated with removing food from a hot kettle "should be obvious to one using ordinary common sense" (id., citing Smith v Stark, 67 NY2d 693 [1986]; Stephen v Sico, Inc., 237 AD2d 709 [3d Dept. 1997]). Moreover, claimant testified that he had been trained in how to properly use the kettles (see Manganaro v State of New York, 24 AD3d 1003, 1004 [3d Dept. 2005]).