Zegarelli v. Dundon

102 A.D.3d 958, 958 N.Y.S.2d 302

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 2013
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Futnam County (Lubell, J.), dated August 16, 2011, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The injured plaintiff, while delivering parcels to the defendant’s home on a hot, misty day, allegedly slipped and fell on a brick walkway that had grass growing up between the bricks.

On her motion for summary judgment, 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 Misir v Beach Haven Apt. No. 1, Inc., 32 AD3d 1002 [2006]; Cupo v Karfunkel, 1 AD3d 48 [2003]; Sun Ho Chung v Jeong Sook Joh, 29 AD3d 677 [2006]; Osborne v Village of N. Tarrytown, 180 App Div 224 [1917]). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment. Angiolillo, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.