Nelson v. 40–01 Northern Boulevard Corp.

• Decision Date: 01 May 2012
• Citation: 2012 N.Y. Slip Op. 03423,943 N.Y.S.2d 216,95 A.D.3d 851
• Parties: Vitalia C. NELSON, respondent, v. 40–01 NORTHERN BOULEVARD CORP., et al., appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03423

943 N.Y.S.2d 216

95 A.D.3d 851

Vitalia C. NELSON, respondent,

v.40–01 NORTHERN BOULEVARD CORP., et al., appellants.

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

May 1, 2012.

Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y. (Nicholas Hurzeler and Gregory S. Katz of counsel), for appellants.

Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Nahman, J.), entered July 12, 2011, which denied their motion for summary judgment dismissing the complaint.

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

The plaintiff allegedly tripped and fell over a single-step riser while leaving a restaurant owned by the defendants. The step was made of orange-colored tile and stood in contrast to the black rug located on the floor below the step. The plaintiff had traversed the step, without incident, approximately two hours earlier, when she first entered the restaurant. The plaintiff testified at her deposition that, just prior to the accident, she was looking “forward.”

While a landowner has a duty to maintain its premises in a reasonably safe manner ( see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868), a landowner has no duty to protect or warn against an open and obvious condition that is not inherently dangerous ( see Tyz v. First St. Holding Co., Inc., 78 A.D.3d 818, 819, 910 N.Y.S.2d 179; Weiss v. Half Hollow Hills Cent. School Dist., 70 A.D.3d 932, 933, 893 N.Y.S.2d 877; Rivas–Chirino v. Wildlife Conservation Socy., 64 A.D.3d 556, 883 N.Y.S.2d 552). Here, the defendants established their prima facie entitlement to judgment as a matter of law by presenting evidence that the single-step riser was open and obvious and not inherently dangerous ( see Tyz v. First St. Holding Co., Inc., 78 A.D.3d at 819, 910 N.Y.S.2d 179; Weiss v. Half Hollow Hills Cent. School Dist., 70 A.D.3d at 933, 893 N.Y.S.2d 877; Bretts v. Lincoln Plaza Assoc., Inc., 67 A.D.3d 943, 944, 890 N.Y.S.2d 87; Groon v. Herricks Union Free School Dist., 42 A.D.3d 431, 432, 839 N.Y.S.2d 788). In opposition, the plaintiff failed to submit evidence sufficient to raise a...