Cupo v. Karfunkel

• Decision Date: 27 October 2003
• Docket Number: 2002-01937.
• Citation: 2003 NY Slip Op 17760,767 N.Y.S.2d 40,1 A.D.3d 48
• Parties: DENISE CUPO, Respondent, v. MICHAEL KARFUNKEL et al., Appellants, et al., Defendants. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

1 A.D.3d 48

767 N.Y.S.2d 40

2003 NY Slip Op 17760

DENISE CUPO, Respondent, v. MICHAEL KARFUNKEL et al., Appellants, et al., Defendants. (And a Third-Party Action.)

2002-01937.

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

October 27, 2003.

Dougherty, Ryan, Giuffra, Zambito & Hession, New York City (Robert J. Giuffra and Elliot Gaztambide, Jr., of counsel), for appellants.

Chelli & Bush, Staten Island (Marvin Ben-Aron of counsel), for respondent.

Richard W. Babinecz, New York City (Helman R. Brook of counsel), for Consolidated Edison Company of New York, Inc., defendant.

Michael A. Cardozo, Corporation Counsel, New York City (Francis F. Caputo and Elizabeth I. Freedman of counsel), for City of New York, defendant.

OPINION OF THE COURT

TOWNES, J.

On this appeal we are asked to consider whether proof that an allegedly dangerous condition on real property is "open and obvious" precludes a finding of liability against a landowner. Recognizing that our decisions on this issue may appear inconsistent, we take this opportunity to clarify that the open and obvious nature of an allegedly dangerous condition is relevant to the issue of the comparative fault of the plaintiff and does not preclude a finding of liability against the landowner.

The plaintiff Denise Cupo was employed as a courier for Federal Express Corporation (hereinafter Fed Ex) when she was injured while making a delivery to the appellants' building in Brooklyn. The plaintiff was pulling a manual hydraulic lift loaded with boxes across the public sidewalk from her truck toward the delivery entrance at the appellants' building when the lift suddenly stopped and turned over, allegedly causing the plaintiff to lose her balance and fall to the ground. The plaintiff claims that, as a result of the accident, she suffered a herniated disc in her lumbar spine which required surgical intervention.

The plaintiff testified at her examination before trial that the front wheel of the lift caught in a depressed area of the sidewalk where the sidewalk met the metal grille of a four-by-eleven feet transformer vault installed and maintained by the defendant Consolidated Edison Company of New York, Inc. (hereinafter Con Edison). The manual lift and pallet used by the plaintiff to transport the boxes were provided by the appellant American Stock Transfer Co., which received Fed Ex deliveries of 15 to 30 large heavy boxes daily. The plaintiff commenced this action and asserts that the City of New York, as the owner of the sidewalk, Con Edison, as the owner of the transformer vault, the appellants, as the owner of the property abutting the public sidewalk, and two tenants of the appellants' building were negligent in that they created or allowed the continued existence of a dangerous condition in the uneven, sunken, and depressed sidewalk near the metal grating, and that the condition caused her to fall.

Following the completion of discovery, the appellants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that, as abutting landowners, they were not responsible for the defect that allegedly caused the plaintiff's injury because the defect was on a public sidewalk owned by the City and near a grille over a vault owned by Con Edison. The appellants also contended that, in any event, they owed no duty to the plaintiff because the condition that allegedly caused her to fall was open and obvious and known to her, as she had previously delivered boxes to that property.

The plaintiff, Con Edison, and the City opposed the motion, arguing that, even though the appellants did not own the sidewalk where the plaintiff fell, the appellants' use of the sidewalk as a driveway to serve their building's loading docks was a special benefit unrelated to the public use, and they therefore had a duty to maintain the sidewalk in a safe condition. The plaintiff annexed to her papers in opposition to the motion the affidavit of an engineer who opined that the defect in the sidewalk that allegedly caused the plaintiff's fall was created by heavy truck traffic driving over the edge of the transformer vault, which caused the sidewalk to crack and break up.

The Supreme Court, inter alia, denied the motion, holding that the plaintiff raised an issue of fact as to whether the alleged defect was caused by the appellants' special use of the sidewalk. The Supreme Court further held that the issue of whether the alleged defect was open and obvious was significant only as to the plaintiff's comparative fault and would not relieve the appellants of liability altogether so as to entitle them to summary judgment.

The appellants do not dispute on appeal that the plaintiff raised a triable issue of fact as to whether the defect was caused by their special use of the sidewalk (see Vought v Hemminger, 220 AD2d 580, 582 [1995]). However, they argue that, regardless of whether they created the defect, they were entitled to summary judgment because there is no duty to warn or protect a person from a condition that is open and obvious and can easily be observed with the reasonable use of the senses.

A landowner "must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Peralta v Henriquez, 100 NY2d 139, 144 [2003], quoting Basso v Miller, 40 NY2d 233, 241 [1976]). "Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally. The scope of any such duty of care varies with the foreseeability of the possible harm" (Tagle v Jakob, 97 NY2d...