Cox v. Cove 5, LLC

Opinion

Cox v Cove 5, LLC

2026 NY Slip Op 05160

September 2, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Jarryd Cox, appellant,

v

Cove 5, LLC, et al., respondents, et al., defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2025-02604, (Index No. 613572/22)

Betsy Barros, J.P.

Lara J. Genovesi

Helen Voutsinas

Carl J. Landicino, JJ.

Puma Law Group, P.C., Ronkonkoma, NY (Zachary M. Beriloff of counsel), for appellant.

Rawle & Henderson, LLP, New York, NY (Laurie Beatus of counsel), for respondent Dublin Deck, LLC.

Cipriani & Werner, Huntington, NY (Sean R. Hutchinson and Catherine R. Everett of counsel), for respondents Cove 5, LLC, and Leeward 5, Inc.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Christopher Modelewski, J.), dated February 13, 2025. The order granted the separate motions of the defendant Dublin Deck, Inc., and the defendants Cove 5, LLC, and Leeward 5, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them, and denied, as academic, the second motion of the defendant Dublin Deck, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the appeal from so much of the order as denied, as academic, the second motion of the defendant Dublin Deck, Inc., for summary judgment dismissing the complaint insofar as asserted against it is dismissed, without costs or disbursements, as the plaintiff is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants Cove 5, LLC, and Leeward 5, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.

The plaintiff allegedly fell and was injured due to a railroad tie that was being used as a wheel stop at an exterior parking lot owned by the defendant Cove 5, LLC (hereinafter Cove), and shared by its tenants, the defendant Dublin Deck, Inc. (hereinafter Dublin), and the defendant Leeward 5, Inc. (hereinafter Leeward). The plaintiff commenced this action to recover damages for personal injuries against Dublin, Cove, Leeward, and another defendant. Dublin moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it had no duty to maintain the parking lot. Cove and Leeward also moved for summary judgment dismissing the complaint insofar as asserted against them, contending that the railroad tie was open and obvious and [*2]not inherently dangerous. Thereafter, Dublin moved a second time for summary judgment dismissing the complaint insofar as asserted against it. In an order dated February 13, 2025, the Supreme Court granted the separate motions of Dublin and of Cove and Leeward, but denied, as academic, Dublin's second motion. The plaintiff appeals.

"Premises liability, as with liability for negligence generally, begins with duty" (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 13). "[I]t is for the court . . . to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society [in general]. The scope of any such duty of care varies with the foreseeability of . . . possible harm" (Tagle v Jakob, 97 NY2d 165, 168; see Alnashmi v Certified Analytical Group, Inc., 89 AD3d at 13). "Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property" (Russo v Frankels Garden City Realty Co., 93 AD3d 708, 710; see Franks v G & H Real Estate Holding Corp., 16 AD3d 619, 620).

Here, Dublin established, prima facie, that it did not own, occupy, control, or make special use of the common area where the incident occurred (see Montalvo v Texas Roadhouse Holdings, LLC, 200 AD3d 986, 987; Russo v Frankels Garden City Realty Co., 93 AD3d at 710), and the lease did not obligate Dublin to illuminate the parking lot or maintain the parking lot. In opposition, the plaintiff failed to raise a triable issue of fact as to whether Dublin assumed a duty of care by a course of conduct.

"A property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition" (Cabanas v Qiu Yu Zou, 215 AD3d 726, 727). However, there is no duty to protect or warn against an open and obvious condition that is not inherently dangerous (see Lacerra v CVS Pharm., 143 AD3d 674; Cupo v Karfunkel, 1 AD3d 48, 52). Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury (see Trincere v County of Suffolk, 90 NY2d 976, 977; Brett v AJ 1086 Assoc., LLC, 189 AD3d 1153, 1154).

Here, Cove and Leeward failed to establish, prima facie, that the presence of the railroad tie at issue was open and obvious and not inherently dangerous (see generally Cupo v Karfunkel, 1 AD3d 48). According to the plaintiff, the accident occurred late at night, the parking lot was full, and it was too dark to notice the presence of the railroad tie at issue. Cove and Leeward failed to establish, prima facie, that the lighting condition was adequate and that they did not create a hazardous condition or have actual or constructive notice of its presence (see Parietti v Wal-Mart Stores, Inc., 29 NY3d 1136, 1137; Conneally v Diocese of Rockville Ctr., 116 AD3d 905, 906). Since Cove and Leeward failed to meet their initial burden as the movants, the burden never shifted to the plaintiff to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted Dublin's first motion for summary judgment dismissing the complaint insofar as asserted against it, but should have denied the motion of Cove and Leeward for summary judgment dismissing the complaint insofar as asserted against them.

BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court