Scalice v. Braisted

116 A.D.3d 755, 982 N.Y.S.2d 921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 2014
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated May 15, 2012, which granted the defendant’s motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly was injured when she slipped and fell on the back steps of the defendant’s residence. The plaintiff testified that, prior to her fall, she felt a “hard cone” or “ball” underneath her foot. After her fall, she observed a crushed seed ball, about the size of a golf ball, on the step. Two or three other seed balls and some leaves were scattered about the steps and landing. The seed balls and leaves apparently had fallen from a nearby tree belonging to the defendant’s neighbor.

The defendant made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous (see Verdejo v New York City Hous. Auth., 105 AD3d 450 [2013]; Zegarelli v Dundon, 102 AD3d 958 [2013]; Brown v Melville Indus. Assoc., 34 AD3d 611 [2006]; Misir v Beach Haven Apt. No. 1, Inc., 32 AD3d 1002 [2006]; DeLaurentis v Marx Realty & Improvement, 300 AD2d 343 [2002]; Cupo v Karfunkel, 1 AD3d 48 [2003]). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiffs cross motion for summary judgment on the issue of liability. Mastro, J.E, Balkin, Miller and LaSalle, JJ., concur.