Pilato v. Diamond

209 A.D.2d 393, 618 N.Y.S.2d 446, 1994 N.Y. App. Div. LEXIS 11039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCabe, J.), entered July 6, 1993, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiffs brought this action against the defendants Julius Diamond and Elsie J. Diamond after the plaintiff Giuseppe Pilato fell and was injured while working on the defendants’ property. Mr. Pilato, a landscaper, was pulling a cut vine loose from a tree when it apparently broke, causing him to fall backward and hit his heel on an oil fill pipe protruding 5 to 6 inches above the ground. The plaintiffs contended that the defendants were negligent, in that the oil fill pipe located in their backyard constituted a defective and dangerous condition. The defendants, maintaining that as a matter of law the pipe did not constitute a defective condition, moved for summary judgment. The motion was granted by the Supreme Court. We affirm.

We agree with the Supreme Court that the plaintiffs failed to establish the existence of a dangerous or defective condition. The pipe on the lawn was clearly visible and created no unreasonable risk of harm. Therefore, as a matter of law, the defendants were not negligent and summary judgment was properly granted (see, Gross v Lewis, 5 NY2d 884; Pesce v Town of Huntington, 152 AD2d 555). Thompson, J. P., Balletta, Rosenblatt and Florio, JJ., concur.