Schiavone v. Bayside Fuel Oil Depot Corp.

• Decision Date: 17 April 2012
• Citation: 942 N.Y.S.2d 585,2012 N.Y. Slip Op. 02857,94 A.D.3d 970
• Parties: John SCHIAVONE, et al., appellants, v. BAYSIDE FUEL OIL DEPOT CORPORATION, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02857
94 A.D.3d 970
942 N.Y.S.2d 585

John SCHIAVONE, et al., appellants,
v.
BAYSIDE FUEL OIL DEPOT CORPORATION, et al., respondents.

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

April 17, 2012.

[942 N.Y.S.2d 585]

Brecher Fishman Pasternack Walsh Tilker & Ziegler, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for appellants.

Edward Garfinkel (McGaw Alventosa & Zajac, Jericho, N.Y. [Joseph Horowitz and Ross Masler], of counsel), for respondents.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

[94 A.D.3d 970] In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated August 11, 2010, as granted the defendants' motion for summary judgment dismissing the complaint.

[94 A.D.3d 971] ORDERED that the order is affirmed insofar as appealed from, with costs.

On March 25, 2006, the plaintiff John Schiavone allegedly was injured when he slipped and fell while alighting from his truck in the defendants' gravel parking lot on Sackett Street in Brooklyn. Schiavone and his wife, suing derivatively, commenced this action, alleging that the parking lot's surface was defective. At his deposition, Schiavone testified that he parked his truck in the lot at the end of each work day. He was looking at the ground just before he allegedly was injured, and did not see anything other than the gravel. The defendants moved for summary judgment dismissing the complaint, contending, among other things, that the condition that allegedly caused the accident 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 Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868), but has no duty to protect against or warn about open and obvious conditions that are not inherently dangerous ( see Dadon v. 102–30 66th Rd. Co–Op Owner's, Inc., 90 A.D.3d 976, 977, 934 N.Y.S.2d 829; Atehortua v. Lewin, 90 A.D.3d 794, 794–795, 935 N.Y.S.2d 102; Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40). Here, the

[942 N.Y.S.2d 586]

defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the surface of the parking lot was an open and obvious condition and that it was not...