Villano v. Strathmore Terrace Homeowners Ass'n, Inc.

• Decision Date: 28 September 2010
• Citation: 76 A.D.3d 1061,908 N.Y.S.2d 124
• Parties: Rose VILLANO, respondent, v. STRATHMORE TERRACE HOMEOWNERS ASSOCIATION, INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 124 76 A.D.3d 1061 Rose VILLANO, respondent, v. STRATHMORE TERRACE HOMEOWNERS ASSOCIATION, INC., et al., appellants. Supreme Court, Appellate Division, Second Department, New York. Sept. 28, 2010.

Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), for appellants.

Jonathan I. Edelstein, New York, N.Y. (Adekunbi Sijuwade and Gregory Bellantone of counsel), for respondent.

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, RUTH C. BALKIN, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated January 4, 2010, as denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

During the afternoon of June 9, 2007, the plaintiff allegedly was injured when she tripped and fell over a sprinkler head, located on her front lawn, which had failed to retract into the ground despite the sprinkler system not being in operation at the time of the accident. The sprinkler head, which was approximately four inches high and two inches wide, and black in color, was situated in the corner of the front lawn immediately adjacent to the black asphalt driveway and the curb.

The plaintiff's home is located within a development called Strathmore Terrace Community, which is operated by the defendant Strathmore Terrace Homeowners Association, Inc. (hereinafter the Strathmore HOA). The defendant Fairfield Properties Services, LP, managed the property. The plaintiff paid a monthly fee to the Strathmore HOA for maintenance of the grounds, including the sprinkler system.

The plaintiff commenced this action to recover damages for personal injuries. The defendants moved for summary judgment dismissing the complaint. The Supreme Court, inter alia, denied the defendants' motion. We affirm the order insofar as appealed from.

To demonstrate entitlement to summary judgment in a trip-and-fall case, the defendants had to establish that they maintained the premises in a reasonably safe condition and that they did not create a dangerous or defective condition on their property or have either actual or constructive notice of a dangerous or defective condition for a sufficient length of time to remedy it ( see Molloy v. Waldbaum, Inc., 72 A.D.3d 659, 897 N.Y.S.2d 653; Gradwohl v. Stop & Shop Supermarket Co., LLC, 70 A.D.3d 634, 636, 896 N.Y.S.2d 85; see also Hayden v. Waldbaum, Inc., 63 A.D.3d 679, 880 N.Y.S.2d 351; Denker v. Century 21 Dept. Stores, LLC, 55 A.D.3d 527, 866 N.Y.S.2d 681).

Here, the defendants failed to meet their burden of establishingthat, as a matter of law, they maintained the premises in a reasonably safe condition ( see Gradwohl v. Stop & Shop Supermarket Co., LLC, 70 A.D.3d at 636, 896 N.Y.S.2d 85). Although the defendants argued, inter alia, that the unretracted sprinkler head was an open and obvious condition which was not inherently dangerous, under these circumstances, it cannot be determined, as a matter of law, that the defendants were entitled to summary judgment dismissing the complaint ( see Shah v. Mercy Med. Ctr., 71 A.D.3d 1120, 898 N.Y.S.2d 589; Cooper v. American Carpet & Restoration Servs., Inc., 69 A.D.3d 552, 895 N.Y.S.2d 96; Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 864 N.Y.S.2d 554; Salomon v. Prainito, 52 A.D.3d 803, 861 N.Y.S.2d 718; Mauriello v. Port Auth. of N.Y. & N.J., 8 A.D.3d 200, 779 N.Y.S.2d 199; Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40). "The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for a jury" ( Shah v. Mercy Med. Ctr., 71 A.D.3d at 1120, 898 N.Y.S.2d 589). Moreover, "[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" ( id.;see Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 864 N.Y.S.2d 554). Here, given the dimensions of the sprinkler head and its location...