Opinion
No. 2019-12244 Index No. 613729/17
03-15-2023
Anibal Villalba, appellant, v. Brian Daughney, et al., respondents.
Sackstein Sackstein & Lee (Michael H. Zhu, Esq., P.C., New York, NY, of counsel), for appellant. Brand Glick Brand, Garden City, NY (Robert S. Mazzuchin of counsel), for respondents.
Sackstein Sackstein & Lee (Michael H. Zhu, Esq., P.C., New York, NY, of counsel), for appellant.
Brand Glick Brand, Garden City, NY (Robert S. Mazzuchin of counsel), for respondents.
MARK C. DILLON, J.P. FRANCESCA E. CONNOLLY, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), entered September 12, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when he tripped and fell on a mat on the front stoop of a house owned by the defendants. Thereafter, the plaintiff commenced this action to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint, contending that they maintained their premises in a reasonably safe condition. The Supreme Court granted the motion. The plaintiff appeals.
"A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Cupo v Karfunkel, 1 A.D.3d 48, 51 [internal quotation marks omitted]; see Zamor v Dirtbusters Laundromat, Inc., 138 A.D.3d 1114). "In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" (Lezama v 34-15 Parsons Blvd, LLC, 16 A.D.3d 560, 560; see Fontana v R.H.C. Dev., LLC, 69 A.D.3d 561, 562).
"[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury'" (Trincere v County of Suffolk, 90 N.Y.2d 976, 977, quoting Guerrieri v Summa, 193 A.D.2d 647, 647 [internal quotation marks omitted]; see Wilks v City of New York, 144 A.D.3d 673, 674). However, "[s]ummary judgment in favor of a defendant is appropriate where a plaintiff fails to submit any evidence that a particular condition is actually defective or dangerous" (Lezama v 34-15 Parsons Blvd, LLC, 16 A.D.3d at 560; see Witkowski v Island Trees Pub. Lib., 125 A.D.3d 768, 769; Przybyszewski v Wonder Works Constr., 303 A.D.2d 482, 483).
Here, the defendants established, prima facie, that the mat was not in a defective or dangerous condition and that they maintained their premises in a reasonably safe condition (see Witkowski v Island Trees Pub. Lib., 125 A.D.3d at 769-770; Przybyszewski v Wonder Works Constr., 303 A.D.2d at 483; Guerrieri v Summa, 193 A.D.2d at 647-648). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the presence of the mat was open and obvious and visible to one reasonably using his or her senses, and not inherently dangerous (see Sprott v IKEA N.Y., LLC, 169 A.D.3d 851; Sosa v RS 2001, Inc., 106 A.D.3d 720; Leib v Silo Rest., Inc., 26 A.D.3d 359; Schoen v King Kullen Grocery Co., 296 A.D.2d 486).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
DILLON, J.P., CONNOLLY, CHAMBERS and WOOTEN, JJ., concur.