Dillon v. Town of Smithtown

Decision Date31 October 2018
Docket Number2018–01066,Index No. 3209/15
Citation165 A.D.3d 1231,87 N.Y.S.3d 84
Parties Bernard J. DILLON, et al., Appellants, v. TOWN OF SMITHTOWN, Respondent.
CourtNew York Supreme Court — Appellate Division

John L. Juliano, P.C., East Northport, NY, for appellants.

Campolo, Middleton & McCormick, LLP, Ronkonkoma, N.Y. (Meghan M. Dolan of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated November 30, 2014. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff Bernard J. Dillon (hereinafter the injured plaintiff) allegedly tripped and fell on a "hump" on one of the baseball fields located within Flynn Memorial Park in the Town of Smithtown. The Town had installed a drain to keep water off this particular ballfield and covered the drain with asphalt, creating a hump. This hump extended to the area between the players' benches and the entrance to the ballfield on the third base side. The injured plaintiff was attempting to move through the entrance on the third base side when he tripped and fell over the hump.

The injured plaintiff, and his wife suing derivatively, commenced this personal injury action against the Town. The Town moved for summary judgment dismissing the complaint, contending that the condition of the hump was open and obvious and not inherently dangerous. The Supreme Court granted the motion, and the plaintiffs appeal.

A landowner has a duty to maintain its premises in a reasonably safe condition (see Peralta v. Henriquez, 100 N.Y.2d 139, 144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 ; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ). There is, however, no duty to protect or warn against conditions that are open and obvious and not inherently dangerous (see Costidis v. City of New York, 159 A.D.3d 871, 70 N.Y.S.3d 74 ; Bogaty v. Bluestone Realty N.Y., Inc., 145 A.D.3d 752, 43 N.Y.S.3d 459 ; Witkowski v. Island Trees Pub. Lib., 125 A.D.3d 768, 769, 4 N.Y.S.3d 65 ; Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767 N.Y.S.2d 40 ). Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury (see Bissett v. 30 Merrick Plaza, LLC, 156 A.D.3d 751, 67 N.Y.S.3d 268 ; Pellegrino v. Trapasso, 114 A.D.3d 917, 918, 980 N.Y.S.2d 813 ). "A condition that is ordinarily apparent to a person making reasonable use of [his or her] senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" ( Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 1009, 864 N.Y.S.2d 554 ; see Dalton v. North Ritz Club, 147 A.D.3d 1017, 46 N.Y.S.3d 900 ; Simon v. Comsewogue Sch. Dist., 143 A.D.3d 695, 696, 39 N.Y.S.3d 180 ; Cassone v. State of New York, 85 A.D.3d 837, 839, 925 N.Y.S.2d 197 ; Shah v. Mercy Med. Ctr., 71 A.D.3d 1120, 898 N.Y.S.2d 589 ).

Here, the Town failed to establish, prima facie, that the condition of the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident (see Dalton v. North Ritz Club, 147 A.D.3d at 1018, 46 N.Y.S.3d 900 ; Simon v....

To continue reading

Request your trial
8 cases
  • Streit v. Katrine Apts. Assocs., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • January 12, 2023
    ...204 A.D.3d at 1128, 166 N.Y.S.3d 369 ; Paget v. PCVST–DIL, LLC, 186 A.D.3d at 1163, 132 N.Y.S.3d 2 ; Dillon v. Town of Smithtown, 165 A.D.3d 1231, 1232, 87 N.Y.S.3d 84 [2d Dept. 2018] ; see also Bissett v. 30 Merrick Plaza, LLC, 156 A.D.3d 751, 752, 67 N.Y.S.3d 268 [2d Dept. 2017] ). That d......
  • Esposito v. Vill. of Belort
    • United States
    • New York Supreme Court
    • October 2, 2019
    ... ... Nallan v Helmsley-Spear, Inc., 50N.Y.2d ... 507,429N.Y.S.2d 606 [1980]; Dillon v Town of ... Smithtown, 165 A.D.3d 1231, 87 N.Y.S.3d 84 [2d Dept ... 2018]; Frank v JS Hempstead ... ...
  • Karpel v. Nat'l Grid Generation, LLC
    • United States
    • New York Supreme Court — Appellate Division
    • July 17, 2019
    ...obvious and not inherently dangerous given the surrounding circumstances at the time of the accident (see Dillon v. Town of Smithtown, 165 A.D.3d 1231, 1232, 87 N.Y.S.3d 84 ; Dalton v. North Ritz Club, 147 A.D.3d 1017, 1018, 46 N.Y.S.3d 900 ; Parente v. City of New York, 144 A.D.3d 1117, 11......
  • Streit v. Katrine Apts. Assocs.
    • United States
    • New York Supreme Court — Appellate Division
    • January 12, 2023
    ... ... she tripped ...          A ... letter between defendant and the Town of Ulster, Ulster ... County from 2009 evidences that, although there was some ... dispute as to ... v Steele, 204 A.D.3d at 1128; Paget v PCVST-DIL, ... LLC, 186 A.D.3d at 1163; Dillon v Town of ... Smithtown, 165 A.D.3d 1231, 1232 [2d Dept 2018]; see ... also Bissett v 30 Merrick ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT