Fernandez v. Edlund

31 A.D.3d 601, 819 N.Y.S.2d 291

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 2006
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated January 27, 2005, as granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. Although a property owner has a duty to maintain his or her property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 [1976]; Capozzi v Huhne, 14 AD3d 474 [2005]), there is “no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” (Jang Hee Lee v Sung Whun Oh, 3 AD3d 473, 474 [2004]; see Cupo v Karfunkel, 1 AD3d 48 [2003]). Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the uneven condition of the unpaved driveway where the accident occurred was not inherently dangerous and could have been readily observed by the reasonable use of one’s senses (see Orlando v Audax Constr. Corp., 14 AD3d 500 [2005]; Capozzi v Huhne, supra; DeLaurentis v Marx Realty & Improvement, 300 AD2d 343 [2002]; Dawson v Cafiero, 292 AD2d 488 [2002]). In opposition to the defendants’ prima facie showing, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Orlando v Audax Constr. Corp., supra). Santucci, J.P., Krausman, Mastro and Skelos, JJ., concur.