Gnolfo v 100 Cleveland Ave. Realty LLC
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Gnolfo v 100 Cleveland Ave. Realty LLC 2012 NY Slip Op 31461(U) May 15, 2012 Sup Ct, Nassau County Docket Number: 4593/10 Judge: Anthony L. Parga Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ----------------- ------- -------- ------- ----------- --------------- )( ------------- --------------------- -- ---- -- -- ----- -- -- -------...................... ...................................................... ....... ....................................... [* 1] SHORT FORM ORDER SUPREME COURT - NEW YORK STATE- NASSAU COUNTY PRESENT: HON. ANTHONY L. PARGA JUSTICE PART 6 KAREN A. GNOLFO Plaintiff INDE)( NO. 4593/10 MOTION DATE: 03/20/12 SEQUENCE NO. 001 -against- 100 CLEVELAND AVENUE REALTY LLC and HASSEL BMW Defendants. Notice of Motion, Affs. & Exs................................................... Affirma tion in Opposition & Exs. Reply Affirma ti 0 D............................................................................................................. Upon the foregoing papers , defendants ' motion for sumar judgment , pursuant to CPLR 3212 , is denied. This is an action for personal injuries allegedly sustained by the plaintiff on August 6 2009 when she fell while walking to her vehicle on the driveway of the defendants ' premises located at 100 Cleveland Avenue in Freeport , New York. Defendants move for summar judgment on liability grounds. In support of their motion the defendants submit the plaintiffs verified bil of pariculars , the plaintiffs deposition transcript, and color copies of photographs of the location where the plaintiff fell. At her deposition, plaintiff testified that she had brought her vehicle to the defendants dealership to be repaired and had gone to retrieve the vehicle on the day of her accident. She was invited to test drive the vehicle and was walking behind defendants ' service manager , Michael when the accident happened. She was following him to her vehicle , which was parked next to a yellow painted curb. Plaintiff was walking on the driveway and began to lift her right leg up to [* 2] step over the yellow painted curb, when she lost her balance and began to fall to the ground. Plaintiff testified that she grabbed onto a green pole that was located adjacent to the curb , but same was not mounted into the ground and , therefore , did not stop her fall. After she fell to the ground , she observed two " deep holes " in the pavement of the driveway, next to the curb which she had been attempting to step over when she fell. She testified that the holes were muddy and wet and that mud got onto her left ar. Plaintiff did not see the holes in the ground prior to her fall. Contrar to defendants ' contentions , when plaintiff was asked at her deposition what caused her to fall , she testified that "those two holes in the ground" caused her fall. She later testified , in response to questions posed by her own attorney, that her left foot was partially in the hole when she fell. She also testified that she felt her foot give way and that she could not catch her balance by grabbing the pole before she fell. She service and into the hole. Later stil , fuher testified that she felt her foot roll off of the flat plaintiff again testified that " after I had fallen , I realized that there were the holes there. There is no other reason that I would have fallen. The holes is what made me fall down. Defendants first contend that the indentations on the driveway, which are alleged to have caused plaintiffs fall , were not inherently dangerous and that because they were in plain view open , obvious , and readily observable by those employing the reasonable use of their senses , the defendants had no duty to protect or war plaintiff against such conditions. Defendants contend that any alleged negligence on the par plaintiffs injuries of the defendants fuer was not a proximate cause of , as plaintiffs failure to observe her suroundings was the sole proximate cause of her fall. Lastly, the defendants contend that the plaintiff was not able to identify what caused her to fall , and , as such , she canot make out a prima facie case of negligence against the defendants. A landowner must act as a reasonable person in maintaining his or her propert in a reasonably safe condition in view of all the circumstances , including the likelihood of injur others , the seriousness of the injur, A.D. 3d 398 863 N. and the burden of avoiding the risk. 2d 465 (2d Dept. 2008)). " Landowners (Roros v. to Oliva who hold their propert open to the public have a general duty to maintain it in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries. Encompassed within this duty is the duty to war of potential [* 3] dangerous conditions existing thereon , whether they are natural or arificial." (DeLaurentis Marx Realty Improvement 300 AD.2d 3443, 752 N. Y.S. 2d 349 (2d Dept. 2002); Tyner 273 AD.2d 364 , 709 N. Y.S.2d 618 (2d Dept. 2000); Basso v. Meyer Miler 40 N. Y.2d 352 233 E.2d 868 (1976)). This duty extends, however , only to those conditions not readily observable and landowners owe no duty to war of conditions that are in plain view , open , obvious , and (Meyer readily discoverable by those employing the reasonable use of their senses. AD.2d 364 , 709 N. AD.2d 3443 , 752 N. Society, DeLaurentis 2d 618 (2d Dept. 2000); v. Rivas- Chirino 2d 349 (2d Dept. 2002); 64 AD.3d 556 , 883 N. Y.S.2d 552 (2d Dept. 2009); Tyner 273 v. Marx Realty Improvement, 300 v. Groon Wildlife Conservation Herricks Union Free v. School District 42 AD.3d 431 839 N. Y.S.2d 788 (2d Dept. 2007)). The issue of whether a dangerous condition is open and obvious is fact specific and (Cassone usually a question of fact for a jury to resolve. Gutman (2d Dept. 2011); v. Todt Hil Plaza v. State 85 AD. 3d 837 N. LLC , 81 AD. 3d 892 , 2d 197 917 N. Y.S.2d 886 (2d Dept. 2011)). Whether a hazard is open and obvious canot be divorced from the surounding circumstances. Hil Plaza (Cassone v. State 85 AD.3d 837 N. Y.S.2d 197 (2d Dept. 2011); LLC , 81 AD.3d 892 , 917 N. Shah S.2d 886 (2d Dept. 2011); Gutman v. v. Todt Mercy Medical Center 71 AD.3d 1120 , 898 N. Y.S. 2d 589 (2d Dept. 2010)). While defendants contend that they had no duty to protect or war plaintiff because the holes in the pavement were not inherently dangerous and were in plain view, open , obvious , and readily observable by those employing the reasonable use of their senses , they failed to submit suffcient evidence of same. The photographs submitted by the defendants depict the holes in the pavement as having the same color as the pavement and being immediately adjacent to the curb. The defendants have failed to submit any evidence regarding the depth of the holes , the condition of the holes , the distace from which one could see the holes , whether the holes would be open and obvious to someone walking behind another , or any evidence that a person who was unfamiliar with the premises could reasonably perceive their existence through the reasonable use of their senses. (See, Roros v. Oliva 54 AD. 3d 398 863 N. Y.S. 2d 465 (2d Dept. 2008); Suffolk 90 N. Y.2d 976 , 688 N. E.2e 489 (1997); 653 , 747 N. S.2d 242 (2d Dept. 2002); Cruz See also, v. Cassone Trincere v. County of Deno s Wonder Wheel Park 297 AD.2d v. State 85 AD. 3d 837 N. Y.S.2d 197 [* 4] (2d Dept. 2011)( defendant failed to establish , prima facie , that the orange cone which caused the plaintiffs fall was open and obvious under the circumstances surrounding the accident , as it may have been obscured or concealed during the walk , given the large number of people traversing the boardwalk)). A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwar where the condition is obscured or the v. (Cassone plaintiff is distracted. Westchester County Healthcare v. Gutman 85 AD. 3d 837 N. Y.S.2d 197 (2d Dept. 2011); State, Corp. Katz 82 AD. 3d 712 , 917 N. Y.S.2d 896 (2d Dept. 2011); Todt Hil Plaza, LLC 81 AD. 3d 892 , 917 N. Y.S.2d 886 (2d Dept. 2011); Mercy Medical Center 71 AD. 3d 1120 , Shah 898 N. Y.S.2d 589 (2d Dept. 2010); Plus Realty Corp. 54 AD. 3d 1008 , 864 N. v. 54 Mazzarell S.2d 556 (2d Dept. 2008)). Defendants have not submitted an affidavit from any witness or any employee of the defendants , including defendants manager , Michael , who the plaintiff was following at the time of the accident , as to the condition of the holes or the fact that they were in plain view of the plaintiff. In addition , the defendants have not submitted any expert affidavit regarding the condition of the holes at issue. The defendants have also failed to establish that any negligence on the par of the defendants was not a proximate cause of the plaintiffs injuries. They have not submitted any deposition testimony or any affidavits from the defendants regarding the maintenance of the driveway, the length of time the holes existed , the defendants ' notice of the holes ' existence , or their lack of involvement in the creation of the holes. They have failed to submit any evidence to establish that they did not cause or create or have actual or constructive notice of the condition at issue herein. (Gutman v. Todt Hil Plaza LLC , 81 AD. 3d 892 , 917 N. Y.S.2d 886 (2d Dept. 2011)). In addition , they have failed to meet their burden of establishing, as a matter oflaw , that they maintained the premises (and in paricular , the driveway at issue) in a reasonably safe (Beckv. Bethpage Union Free School Dist. 82 AD. 3d 1026 919 N. condition. 2011); Roros v. Oliva 54 AD. 3d 398 863 N. Realty Improvement 300 AD.2d 3443 , 752 N. AD.2d 364 , 709 N. Y.S. 2d 618 (2d Dept. 2000); 2d 465 (2d Dept. 2008); Meyer v. DeLaurentis S.2d 349 (2d Dept. 2002); S.2d (2d Dept. Basso v. Miler 40 N. Y.2d 233 v. Marx Tyner 273 352 N. E.2d 868 (1976)). Lastly, as noted supra contrar to defendants ' contentions that plaintiff was unable to ' ,, , , ' \, ,,_ - '.' " [* 5] :' ~~~ \. . identify the cause of her fall , the plaintiff did , in fact , identify the cause of her fall as the holes in the ground adjacent to the curb that she was in the process of stepping over at the time the accident occurred. As such , defendants have failed to make a prima facie showing of entitlement to summary judgment. Accordingly, it is not necessary f )r the Court to review the sufficiency ofthe plaintiffs opposition papers. (Alvarez v. Prospect Hosp. 68 N. Y. 2d (1986); Gutman v. Todt !fil Plaza. LLC 81 A. 320 , 501 N. 2d 572 3d 892 , 917 N. Y.S. 2d 886 (2d Dept. 2011)). Defendants ' motion for summary judgment is denied in its entirety. Dated: May 15 2012 i "" r ) l'. :2-, Anthony L. Parga , f's. Cc: Wilson , Elser , Moskowitz Edelman & Dicker , LLP 3 Gannett Drive White Plains , NY 10604 Sanders , Sanders , Block , Woycik Viener & Grossman , P. tOO Herricks Road Mineola , NY 11501 c. ENTERED MAY 17 20'2 F'CE COUN
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