Pellegrino v. Trapasso

• Decision Date: 26 February 2014
• Parties: Nicholas PELLEGRINO, respondent, v. Edward TRAPASSO, appellant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 917
980 N.Y.S.2d 813
2014 N.Y. Slip Op. 01304

Nicholas PELLEGRINO, respondent,
v.
Edward TRAPASSO, appellant.

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

Feb. 26, 2014.

Karen L. Lawrence, Tarrytown, N.Y. (David Holmes of counsel), for appellant.

James L. Rohrig, Tuckahoe, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (O.Bellantoni, J.), entered September 25, 2012, which denied his motion for summary judgment dismissing the complaint.

[980 N.Y.S.2d 814]

ORDERED that the order is affirmed, with costs.

On July 5, 2003, the plaintiff, who was 15 years old at the time, was attending a party at the defendant's house, where fireworks were being set off. The plaintiff allegedly stepped backward to distance himself from the fireworks, and tripped over Belgian blocks that formed a border around one of the trees on the defendant's front lawn, becoming impaled on a wooden stake that was within the border. The plaintiff commenced this action against the defendant, alleging that the defendant was negligent in his maintenance of the property and in his supervision of his guests. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court denied the motion.

A property owner is charged with the duty of maintaining its premises in a reasonably safe condition ( see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868;Katz v. Westchester County Healthcare Corp., 82 A.D.3d 712, 917 N.Y.S.2d 896). A property owner has no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous ( see Atehortua v. Lewin, 90 A.D.3d 794, 794, 935 N.Y.S.2d 102;Surujnaraine v. Valley Stream Cent. High School Dist., 88 A.D.3d 866, 866, 931 N.Y.S.2d 119;Katz v. Westchester County Healthcare Corp., 82 A.D.3d at 712, 917 N.Y.S.2d 896;Tyz v. First St. Holding Co., Inc., 78 A.D.3d 818, 910 N.Y.S.2d 179;Weiss v. Half Hollow Hills Cent. School Dist., 70 A.D.3d 932, 893 N.Y.S.2d 877;Bretts v. Lincoln Plaza Assoc., Inc., 67 A.D.3d 943, 890 N.Y.S.2d 87;Neville v. 187 E. Main St., LLC, 33 A.D.3d 682, 822 N.Y.S.2d 599;Cupo v. Karfunkel, 1 A.D.3d 48, 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 Acevedo v. New York City Tr. Auth., 97 A.D.3d 515, 947 N.Y.S.2d 599;Surujnaraine v. Valley Stream Cent. High School Dist., 88 A.D.3d at 866, 931 N.Y.S.2d 119;Katz v. Westchester County Healthcare Corp., 82 A.D.3d at 712, 917 N.Y.S.2d 896;Stoppeli v. Yacenda, 78 A.D.3d 815, 911 N.Y.S.2d 119;Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 908 N.Y.S.2d 124). The issue of whether a dangerous condition is open and obvious is also fact-specific, and usually a question of fact for a jury to resolve ( see Gutman v. Todt Hill Plaza, LLC, 81 A.D.3d 892, 917 N.Y.S.2d 886;Shah v. Mercy Med. Ctr., 71 A.D.3d 1120, 898 N.Y.S.2d 589). Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances ( see Atehortua v. Lewin, 90 A.D.3d at 794, 935 N.Y.S.2d 102;Katz v. Westchester County Healthcare Corp., 82 A.D.3d at 712, 917 N.Y.S.2d 896). A condition that is ordinarily apparent to a person making...