Boyd v. N.Y.C. Hous. Auth.

Decision Date16 April 2013
PartiesGerald BOYD, Plaintiff–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.
CourtNew York Supreme Court — Appellate Division

105 A.D.3d 542
964 N.Y.S.2d 10
2013 N.Y. Slip Op. 02507

Gerald BOYD, Plaintiff–Respondent,
v.
NEW YORK CITY HOUSING AUTHORITY, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

April 16, 2013.



Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.


TOM, J.P., ANDRIAS, SAXE, ABDUS–SALAAM, GISCHE, JJ.

[105 A.D.3d 542]Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered on or about June 8, 2012, which denied

[964 N.Y.S.2d 11]

defendant's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff alleges that he was injured in the grounds outside the building in which he lives, when he could not find a seat on a bench, and decided to lean back against what he thought was a sturdy, three-foot-high black iron fence surrounding an area of greenery. In fact, he had leaned against an unlocked gate, which swung inward, causing him to fall and suffer injuries.

Although property owners have a duty to maintain their property in a reasonably safe condition, and to warn of latent hazards of which they are aware ( see [105 A.D.3d 543]Basso v. Miller, 40 N.Y.2d 233, 245, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] ), they have no duty to protect or warn, and a court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous ( see e.g. Lazar v. Burger Heaven, 88 A.D.3d 591, 931 N.Y.S.2d 296 [1st Dept. 2011]; Baynes v. City of New York, 81 A.D.3d 423, 916 N.Y.S.2d 58 [1st Dept. 2011]; Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40 [2d Dept. 2003] ). “In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property” ( Cupo, 1 A.D.3d at 52, 767 N.Y.S.2d 40).

Here, defendant NYCHA established prima facie that the unlocked gate that allegedly caused plaintiff to injure himself was open and obvious, and was not inherently dangerous. The color photographs in the record show that the gate was “plainly observable and did not pose any danger to someone making reasonable use of his or her senses” ( Buccino v. City of New York, 84 A.D.3d 670, 670, 923 N.Y.S.2d 322 [1st Dept. 2011] [internal quotation marks omitted]; see also Gallub v. Popei's Clam Bar, Ltd., of Deer Park, 98 A.D.3d 559, 949 N.Y.S.2d 467 [2d Dept. 2012] ). The gate was not obscured by other people or objects, or by its location, and nothing about it or the fence created any optical confusion. Plaintiff had lived in the building since 2007, and the gate had been unlocked and in the same condition since 2006, if not longer. Plaintiff testified that he looked at the fence before he leaned against it and “assumed it was sturdy,” and there is no evidence that he did not notice the gate because he was distracted. NYCHA's superintendent of groundskeepers stated that NYCHA had not received any other complaints about the fence, and no one else had ever been hurt by it. Furthermore, “there is nothing inherently dangerous about a gate that has no lock” ( Ortiz v. New York City Hous. Auth., 85 A.D.3d 573, 574, 925 N.Y.S.2d 481 [1st Dept. 2011] ).

In opposition, plaintiff failed to raise an issue of fact ( see Bloom v. Lula Realty Corp., 43 A.D.3d 662, 662, 840 N.Y.S.2d 870 [1st Dept. 2007] [“plaintiff has failed to demonstrate that the absence of a knob or handle on the gate in any way constituted a defect, violated a statute, or was inherently dangerous”] ). The dissent disagrees, finding an issue of fact whether the gate was a trap for the unwary, based on the affidavits of plaintiff's expert and an eyewitness stating that the fence and gate had the appearance of one continuous fence. However, the color photographs in the record show that the gate is...

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