Simon v. Plainview Ave. Assoc.

Opinion

Simon v Plainview Ave. Assoc.

2026 NY Slip Op 05205

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.

Michael Joseph Simon, appellant,

v

Plainview Avenue Associates, defendant, Home Depot U.S.A., Inc., et al., respondents.

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

Decided on September 2, 2026

2025-01291, (Index No. 606475/23)

Hector D. Lasalle, P.J.

Francesca E. Connolly

Janice A. Taylor

Elena Goldberg Velazquez, JJ.

Krentsel Guzman Herbert, LLP (Horn Appellate Group, Brooklyn, NY [Scott T. Horn and Ross S. Friscia], of counsel), for appellant.

De Martini & Yi, LLP (Parsky & Galloway, LLC, New York, NY [Jonathan R. Sichtermann], of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lisa A. Cairo, J.), entered January 8, 2025. The order granted the motion of the defendants Home Depot U.S.A., Inc., and Home Depot Store #1208 for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Home Depot U.S.A., Inc., and Home Depot Store #1208 for summary judgment dismissing the complaint insofar as asserted against them is denied.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when he tripped and fell over the fork part of a forklift that was parked in an aisle of a Home Depot store. At the time of the accident, the plaintiff was attempting to move a piece of "five quarter decking" from the aisle shelving into his cart. The plaintiff described the five quarter decking as a board, weighing 10 to 15 pounds, that was 10-feet long and 5½-inches wide.

Following discovery, the defendants Home Depot U.S.A., Inc., and Home Depot Store #1208 (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. In support of their motion, the defendants argued that the alleged unsafe condition was both open and obvious and not inherently dangerous. In an order entered January 8, 2025, the Supreme Court granted the defendants' motion. The plaintiff appeals.

"A landowner has a duty to maintain its premises in a reasonably safe condition" (Laruccia v Lewis J. Newton & Sons, 242 AD3d 854, 854; see Frissora v Lutheran Hous. Dev. Fund Corp. at Concord Vil., 246 AD3d 706, 707). "However, a landowner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous" (Laruccia v Lewis J. Newton & Sons, 242 AD3d at 854 [internal quotation marks omitted]; see Young Min Kim v Jetro Cash & Carry Enters., LLC, 236 AD3d 1090, 1091). "The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the [*2]totality of the specific facts of each case" (Laruccia v Lewis J. Newton & Sons, 242 AD3d at 855 [internal quotation marks omitted]; see Velazquez v County of Westchester, 237 AD3d 1137, 1139). As such, it is "usually a question of fact for a jury" (Velazquez v County of Westchester, 237 AD3d at 1139 [internal quotation marks omitted]; see Kean-Chong v MBA-Vernon Blvd., LLC, 228 AD3d 851, 852).

Here, the defendants' submissions failed to eliminate all triable issues of fact as to whether the forklift was open and obvious and not inherently dangerous (see Lloyd v Liberty Beer Depot, Inc., 241 AD3d 530, 531; Russo v Home Goods, Inc., 119 AD3d 924, 926). "Some hazards, although discernable, may be hazardous because of their nature and location" (Lloyd v Liberty Beer Depot, Inc., 241 AD3d at 531 [internal quotation marks omitted]; see Blackwood v E.S.F. Transp., Inc., 231 AD3d 923, 925). In particular, the plaintiff's deposition testimony raised a triable issue of fact as to whether the forklift's location, in relation to the five quarter decking the plaintiff was loading into his cart when the accident occurred, constituted an inherently dangerous condition (see Lloyd v Liberty Beer Depot, Inc., 241 AD3d at 531; Blackwood v E.S.F. Transp., Inc., 231 AD3d at 925; Russo v Home Goods, Inc., 119 AD3d at 926). The plaintiff testified, inter alia, that he could not put his cart right next to the location in the aisle where he was retrieving the five quarter decking because the forklift was in the way.

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

In light of the foregoing, we need not reach the parties' remaining contentions.

LASALLE, P.J., CONNOLLY, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court